LIBRARY 

UNIVERSITY  OF  CALIFORNIA 
DAVIS 


ay 


ESSAYS 


AND 


SPEECHE  S 


OP 


JEREMIAH    S.    BLACK 


WITH  A   BIOGRAPHICAL  SKETCH. 


BY 

CHAUNCEY  F.   BLACK. 


NEW  YORK: 

D.    APPLETON    AND    COMPANY, 
1,  3,  AND  5  BOND  STREET. 

1885. 


COPTBIGHT,  1885, 

BY  CHAUNCEY  F.  BLACK. 


OOMPILEE'S  NOTE. 


THE  speeches  and  essays  comprised  in  this  book  are  selections 
from  the  most  important  productions  of  the  author.  A  great  mass 
of  interesting  and  valuable  matter  has  been  excluded,  and  will  prob 
ably  find  place  in  a  publication  of  a  different  character  at  some 
future  time.  It  has  not  been  without  difficulty  that  those  here 
reproduced  were  recovered  for  the  present  purpose.  "When  Judge 
Black  had  uttered  a  speech,  or  written  an  essay,  he  concerned  him 
self  no  more  about  ifc,  but  left  it  to  find  what  entertainment  it  could 
in  the  world.  He  preserved  nothing,  and  the  compiler  is  indebted 
to  friends  in  various  parts  of  the  country  for  copies  of  some  of  the 
most  famous  papers  in  this  volume.  He  is  under  obligations  pecul 
iarly  heavy  to  Hon.  Levi  Maish,  of  York,  Pennsylvania,  for  fa 
vors  of  this  kind. 

The  open  letters  to  Vice-President  Wilson  on  the  character  of 
Edwin  M.  Stan  ton,  the  letter  to  Mr.  Adams  on  the  character  of 
William  H.  Seward,  and  the  article  entitled  "  A  Great  Lawsuit  and 
a  Field  Fight,"  are  taken  from  the  "Galaxy"  magazine.  The 
replies  to  Mr.  Ingersoll,  Mr.  Boutwell,  and  Mr.  Howe,  and  the  article 
entitled  "  The  Great  Fraud,"  are  copied  from  the  "North  American 
Review,"  in  which  they  originally  appeared. 

The  compiler  regrets  that  he  is  unable  to  present  the  great 
speech  in  the  McCardle  case.  The  original  report  of  this  speech 
was  so  defective  that  Judge  Black  repudiated  it  altogether,  and  had 
dictated  about  two  thirds  of  a  revised  report,  when  the  work  was 
suspended  and  never  resumed.  It  would  be  obviously  unfair  to 
offer  the  reader  either  the  discarded  newspaper  report,  or  the  in 
complete  revise,  and  so  the  speech  has  been  wholly  omitted,  great 
and  celebrated  as  it  was. 


iv  COMPILERS  NOTE. 

Except  in  one  instance,  the  compiler  lias  not  encumbered  the 
following  pages  with  notes  of  any  description.  It  will  be  found 
that  each  speech  and  essay  will  itself  contain  a  sufficient  explana 
tion  of  the  circumstances  under  which  it  was  spoken  or  written. 

There  has  been  for  many  years  a  steadily  increasing  demand  for 
the  republication  of  these  papers  in  some  appropriate  and  permanent 
form ;  and  if  this  volume  shall  meet  the  wants  of  the  many  persona 
whose  individual  requests  for  separate  copies  the  family  and  friends 
of  Judge  Black  have  been  unable  to  honor,  the  object  of  the  com 
piler  will  have  been  accomplished. 

CHAUNCEY  F.  BLACK. 

BROCKIE,  January,  1885. 


CONTENTS. 


PAGE 

BIOGRAPHICAL  SKETCH 1 

MISCELLANEOUS. 

Address  delivered  before  the  Agricultural  Society  of  Somerset  County,  at  its  Annual 

Exhibition,  October  6,  1854 34 

"  Religious  Liberty." — An  Address  to  the  Phrenakosmian  Society  of  Pennsylvania 

College,  delivered  at  the  Annual  Commencement,  September  17,  1856      .        .       51 

"  Political  Preaching."— Reply  to  Dr.  Nevin 67 

Answer  to  Ingersoll 76 

Legislative  Oath.— Constitutional  Convention,  March  10,  1873         ....  96 

A  Great  Lawsuit  and  a  Field  Fight 109 

The  Character  of  Mr.  Se ward.— Reply  to  C.  F.  Adams,  Sr 134 

Speech  at  the  Celebration  of  the  Centenary  of  Grattan's  Declaration  of  Irish  Inde 
pendence,  under  the  Auspices  of  the  Irish  National  Land  League,  of  Maryland, 
at  Concordia  Opera-House,  Baltimore,  April  18,  1882 158 

Railroad  Monopoly. — Argument  to  the  Judiciary  Committee  of  the  Senate  of  Penn 
sylvania  172 

EULOGIES. 

On  the  Life  and  Character  of  General  Andrew  Jackson. — Delivered  at  Bedford,  Penn 
sylvania,  July  28,  1845 189 

On  the  Death  of  Judge  Gibson 205 

On  the  Death  of  Senator  Carpenter 209 

POLITICAL  ESSAYS  AND  LETTERS. 
Observations  on  Territorial  Sovereignty.— Replies  to  Senator  Douglas     .        .        .212 

Letter  to  Judge  Hoar     .  242 

Letters  to  Henry  Wilson         ...  ,245 


yi  CONTENTS. 

PAOH 

Open  Letter  to  General  Garfield 292 

The  Great  Fraud 312 

Letter  to  Mr.  Stoughton 340 

The  Third  Term :  Reasons  against  it 366 

General  Grant  and  Strong  Government 389 

The  Electoral  Vote  of  Louisiana 407 

FORENSIC. 

Ableman  vs.  Booth.— The  United  States  vs.  Booth 417 

Fossatt  vs.  the  United  States  (Rancho  de  los  Capitancillos) 430 

Peirce  vs.  the  United  States  (Floyd  Acceptances) 470 

Providence  Rubber  Company  vs.  Goodyear' s  Executor  et  al. 488 

In  Defense  of  the  Right  to  Trial  by  Jury.— Ex-parte  Milligan          .        .        .        .510 

United  States  vs.  Blyew  et  al.  (Civil  Rights  Bill) 539 

State  of  Missouri  ex  rel.  Frank  J.  Bowman  vs.  E.  A.  Lewis  et  al.,  Judges  St.  Louis 

Court  of  Appeals 657 

The  McGarrahan  Claim 565 

Federal  Jurisdiction  in  the  Territories. — Right  of  Local  Self-government          .         .  595 

The  South  Carolina  Case                                                                                             ,  616 


BIOGEAPHICAL   SKETCH. 


11 0  good  gray  head,  which  all  men  knew ; 
0  iron  nerve,  to  true  occasion  true ; 
0  fallen  at  length,  that  tower  of  strength, 
Which  stood  four-square  to  every  wind  that  blew  I " 


THIS  sketch  will  give  the  reader  little  more  than  an  outline  of  the 
life  of  Judge  Black.  If  it  puts  him  in  possession  of  a  few  dates, 
and  the  real  nature  of  a  few  important  transactions  in  which  he  took 
part,  together  with  a  very  limited  conception  of  his  general  work  and 
personal  character,  the  modest  purpose  of  the  writer  will  have  been 
attained.  Out  of  the  rich  and  abundant  materials  which  remain,  it  is 
believed  that  an  extremely  useful  and  interesting  book  of  biography 
may,  at  a  later  period,  be  made.  But  it  will  require  much  time  to 
collect,  arrange,  and  illustrate  the  records  of  a  life  so  busy  and  the 
various  produce  of  a  pen  so  active  as  his.  Nothing  can,  therefore,  be 
said  of  it  at  present,  except  that  it  will  in  the  proper  season  be  con 
scientiously  done,  though  in  other  respects  it  will  doubtless  be  wholly 
unworthy  of  the  subject. 

JEREMIAH  SULLIVAN  BLACK  was  born  at  his  father's  homestead, 
a  place  called  Pleasant  Glades,  in  Stony  Creek  Township,  Somerset 
County,  Pa.  It  is  situated  on  the  Bedford  turnpike,  seven  miles  from 
Somerset,  the  county  town,  in  the  lofty  basin  between  the  main  range 
of  the  Alleghanies  and  the  Laurel  Ridge,  two  thousand  feet  above  the 
level  of  the  sea.*  There  are  the  graves  of  his  ancestors, f  for  two 

*  "  It  is  not  a  valley  quite,  nor  basin,  but  is  slightly  curved  or  cupped  from  crest  to 
crest  of  the  twin  highlands,  where  they  interlock  and  lift  the  intervale  almost  to  a  level 
with  their  summits." — Dr.  WILLIAM  ELDER,  in  "  General  Ogle,"  "  Periscopics?  p.  15. 

f  Judge  Black's  ancestors  were  Scotch-Irish  and  German.     The  Blacks  of  that  ilk 


2  BIOGRAPHICAL  SKETCH. 

generations,  in  a  picturesque  burial-ground,  visible  from,  the  famous 
thoroughfare,  once  thronged  with  flying  stages  and  great  canvas-cov 
ered  freight- wagons,  but  now  almost  as  desolate  as  the  loneliest  glens 
of  the  neighboring  mountain. 

His  grandfather,  James  Black,  had  been  a  man  of  considerable 
landed  property  and  some  consequence  in  that  community.  He  was 
a  farmer,  a  justice  of  the  peace,  and  a  local  public  character  of  more 
than  ordinary  influence.  His  father,  Henry  Black,  heir  to  the  home 
stead,  was  justice  of  the  peace,  associate  judge  of  the  county  for 
twenty  years,  member  of  the  General  Assembly,  and  representative  in 
Congress.  He  died  in  1841 — the  year  before  his  son  was  appointed 
president  judge  of  the  courts  in  which  he  himself  had  so  long  sat  as 
an  associate — widely  regretted  by  the  public  whom  he  had  served 
honorably  at  a  time  when  public  employment  implied  public  con 
fidence. 

The  lad  went  to  the  schools  of  the  neighborhood — of  which  his 
conversation  through  life  was  full  of  racy  anecdotes — in  the  country, 
at  the  villages  of  Stoystown,  Berlin,  and  Somerset,  and  finally  to  a 
classical  school  at  Brownsville,  Fayette  County,  where  his  education 
at  the  hands  of  regular  masters  came  to  an  end.  Thenceforth  he 
governed  his  own  studies,  but  he  governed  them  with  a  sober  judg 
ment,  though  he  pursued  them  with  a  keen  spirit.  Mental  labor  was 
almost  no  labor  to  him.  On  one  occasion,  when  his  father  was  taking 
leave  of  his  family  upon  the  eve  of  his  departure  for  some  distant 
place,  he  asked  each  person  in  turn  what  he  should  bring  him  or  her 
from  the  great  town.  Young  Jere  was  slow  to  answer,  as  if  his  re- 
came  from  Ireland,  and  settled  in  that  part  of  York  County  which  has  since  been  set 
apart  to  Adams,  where  James  Black,  grandfather  of  Judge  Black,  married  Jane 
McD  enough. 

Judge  Black's  mother  was  Mary  Sullivan,  born  at  York,  August  16,  1780.  Her 
father,  Patrick  Sullivan,  was  born  in  Ireland  on  St.  Patrick's  day,  1754,  came  to  this 
country  at  fifteen  years  of  age,  served  as  a  captain  in  the  War  of  Independence,  and, 
coming  to  York  on  some  military  duty,  married  Barbara  Bowser,  a  person  of  pure  Ger 
man  blood.  They  removed  to  Elk  Lick  Township,  Somerset  County,  where  Captain  Sul 
livan  had  a  comfortable  estate  in  lands,  called  in  the  patent  "  Rural  Felicity."  He  was 
a  stern  Federalist,  was  rather  conspicuous  in  local  politics,  and  for  some  years  repre 
sented  that  district  in  the  Legislature.  As  a  child  Judge  Black  spent  much  time  with 
these  grandparents  at  "  Rural  Felicity,"  which,  although  he  never  owned  a  foot  of  it, 
and  it  has  long  since  passed  out  of  the  family,  is  now  most  frequently  described  as 
the  "  Judge  Black  farm." 


BIOGRAPHICAL  SKETCH.  3 

quest  was  almost  too  great  a  one  to  be  preferred,  but  finally  said, 
"Father,  I  wish  you  would  bring  me  Shakespeare's  plays."  "Ah, 
Jere,"  said  the  father,  "  I  fear  you  have  had  plays  enough.  Hadn't 
I  better  bring  you  some  works  f  "  This  reply  was  not  intended  as  a 
rebuke  to  the  boy  for  any  supposed  aversion  to  manual  labor,  but  was 
merely  a  witty  expression  of  his  own  opinion  of  the  ease  and  pleasure 
with  which  the  young  student  had  mastered  the  books  he  already 
had. 

The  boy  was  especially  fond  of  the  Latin  classics,  and  at  fifteen 
or  thereabout  was  a  clever  Horatian.  He  had  committed  the  text 
verbatim  ;  had  translated  it  into  English  prose  ;  and  had  then  turned 
the  whole  into  English  verse  of  his  own.  To  the  day  of  his  death  he 
remembered  literally  all  three — the  Latin,  the  English  prose,  and  the 
English  verse — though  neither  had  ever  been  written  ;  and  he  amused 
many  a  leisure  moment  by  comparing  his  childish  version  with  the 
numerous  published  translations  of  his  favorite.  This,  however,  was, 
as  his  father  intimated,  but  the  play  of  a  still  undisciplined  but  ex 
traordinarily  vigorous  intellect.  He  pursued  with  even  greater  assidu 
ity  the  studies  for  which  he  had  less  taste,  and  in  which  he  then  felt 
the  greatest  dread  of  finding  himself  deficient  when  he  should  come 
to  that  man's  work  of  making  an  honest  living,  which  he  knew,  from 
his  father's  circumstances,  he  must  soon  take  up.  He  subjected  every 
learned  man,  priest  or  layman,  who  came  his  way,  to  a  catechism  of 
his  own  devising,  and  thus  cleared  up  the  doubts  and  difficulties 
which  occasionally  arose  in  the  course  of  his  self-guided  studies.  It 
is  not,  therefore,  surprising  that  when,  at  the  age  of  seventeen,  he 
rode  to  the  county  town  on  horseback,  with  his  father,  and  was  en 
tered  a  student  of  law  in  the  office  of  Chauncey  Forward,  he  was 
found  a  fair  scholar,  well  equipped  for  the  profession.  But,  as  the 
Shakespeare  incident  above  goes  to  show,  his  attention  had  not  been 
confined  to  school-books.  His  serious  mind,  with  its  mighty  and 
eager  grasp,  seized  and  assimilated  everything  within  reach.  He  had 
read  every  book  in  his  father's  house — and  that  was  a  store  by  no 
means  inconsiderable  for  the  time  and  place — and  also  every  one  that 
could  be  fished  from  the  shelves  and  closets  of  the  better  furnished 
house  of  his  grandfather,  Patrick  Sullivan,  in  Elk  Lick  Township, 
where  in  childhood  and  boyhood  he  had  frequently  spent  many  weeks 
at  a  time.  While  a  student  at  Somerset  he  acquired  French  enough 
to  read  and  write  it  with  some  facility,  from  a  Frenchman  who  taught 


4  BIOGRAPHICAL  SKETCH. 

in  that  and  the  neighboring  counties,  as  he  happened  to  be  favored 
with  a  class.* 

Mr.  Forward  \  was  then  in  the  prime  of  his  life,  and  was  highly 
distinguished  both  at  the  bar  and  in  public  life.  He  was  the  unques 
tioned  leader  of  the  Democratic  party,  as  Mr.  Charles  Ogle  was  of  the 
Whig  or  Anti-Masonic  party.  The  student  was  deeply  impressed  by 
the  remarkable  qualities  of  these  great  men,  and  became  profoundly 
interested  in  the  political  questions  over  which  they  contended.  He 
soon  contributed  his  share  to  the  discussion  in  the  form  of  articles  in 
the  local  newspapers,  which  attracted  attention,  and  first  revealed  to 
Mr.  Forward  the  fact  that  his  somewhat  rustic-appearing  student 
from  Stony  Creek  was  a  person  to  be  respectfully  considered.  Al 
though  Judge  Black,  the  elder,  was  a  Whig,  his  son  became  a  Demo 
crat,  and,  from  that  good  hour  to  his  last  on  earth,  defended  with  all 
the  fervor  of  strong  conviction  and  passionate  attachment  the  prin 
ciples  he  then  intelligently  espoused. 

The  student  was  at  first  somewhat  staggered  by  the  mass  of  learn 
ing  pertaining  to  the  science  he  had  undertaken  to  acquire,  and  he 
shrank  modestly  from  what  appeared  to  him  an  almost  impossible 
labor.  But  when  he  had  mastered  a  few  governing  principles,  every 
thing  fell  into  order  in  his  orderly  mind,  and  the  rapidity  of  his 
mental  conquests  in  this  new  domain  were  most  astonishing,  and  par 
ticularly  so  to  himself.  Mr.  Forward  was  more  than  gratified.  His 
student  had  not  only  excited  his  admiration,  but  had  won  his  respect 
and  confidence  in  such  measure  that  he  brought  him  to  the  bar 
before  he  was  of  age,  and,  having  himself  been  elected  to  Congress, 
immediately  "  advertised  "  his  large  business  into  the  hands  of  young 
Mr.  Black.  The  latter  was  soon  after  appointed  Deputy  Attorney- 
General  for  the  county  of  Somerset,  and  found  himself  on  one  side  or 
the  other  of  every  case  in  the  several  courts.  His  fame  and  practice 
extended  rapidly,  and  rested  upon  the  sure  foundation,  not  of  genius 
merely,  or  of  the  capacity  for  oratorical  display,  but  of  personal  prob 
ity,  conscientious  devotion  to  the  interests  of  clients,  and  that  com 
prehensive  and  scientific  knowledge  of  the  law  which,  in  the  consider- 

*  After  he  became  Attorney-General,  he  learned  enough  Spanish  to  enable  him  to 
understand  and  expound,  though  not  critically,  the  Spanish  and  Mexican  laws  and  legal 
documents  relating  to  California  land-grants. 

f  Jeremiah  S.  Black  and  Mary  Forward,  eldest  daughter  of  Chauncey  Forward,  were 
married  March  23,  1 836.  She  survives  him. 


BIOGRAPHICAL  SKETCH.  5 

ate  judgment  of  Iris  professional  brethren,  gives  him  historical  rank 
beside  the  illustrious  Gibson.*  When,  therefore,  Mr.  Forward  re 
turned  to  the  bar,  he  encountered  Mr.  Black,  among  others,  at  the 
head  of  it.  He  continued  to  practice,  with  success,  in  Somerset, 
Cambria,  Bedford,  and  Blair,  until  1842,  when,  at  thirty-two  years 
of  age,  he  was  appointed  President  Judge  of  the  Sixteenth  Judicial 
District,  f 

Judge  Black  while  at  the  bar  had  not  been  much  of  a  politician. 
He  had  given  his  mind  to  literature  and  law,  and  if  he  was  profound 
in  learning  he  was  also  masterly  in  exposition.  He  was  not  fond  of 
the  stump.  He  had  no  taste,  as  he  always  insisted  he  had  no  talent, 
for  that  kind  of  speaking.  But  he  was  a  vigorous  writer  on  po 
litical  subjects,  and  his  pen  was  much  in  the  service  of  his  party. 
He  did  also  occasionally  overcome  his  repugnance  to  popular  exhorta 
tions,  and  address  political  meetings  in  the  counties  in  which  he 
practiced,  when  he  invariably  raised  his  reputation  by  the  clearness, 
solidity,  and  dignity  of  his  arguments,  confined  to  the  principles  in 
dispute,  and  relieved  only  by  some  bit  of  quaint  humor  or  curious 
illustration  out  of  some  unfamiliar  book.  As  already  said,  however, 
he  was  a  Democrat  of  the  straitest  sect,  a  disciple  of  Jefferson, 
and  a  most  unflinching  and  aggressive  friend  of  Jackson.  It  is 
not  surprising  that  such  a  man  should  have  been  greatly  aroused 
by  the  fierce  and  bitter  struggle  which  resulted  in  the  election  of 

*  "When  I  came  here  in  1838  there  were  five  gentlemen,  practicing  members  of  the 
bar,  all  of  whom  have  since  made  their  marks  upon  the  history  of  the  country.  .  .  .  They 
were  Chauncey  Forward,  Charles  Ogle,  Moses  Hampton,  Joshua  F.  Cox,  and  Jeremiah  S. 
Black.  I  name  them  in  the  order  in  which  they  were  admitted  to  this  bar,  and  not  with 
any  view  of  preference  for  either  or  any  of  them,  for,  if  I  did,  I  certainly  would  not 
name  Judge  Black  last,  for  as  a  lawyer  he  attained  higher  honors  than  any  of  them. 
Chauncey  Forward  was  a  great  lawyer,  a  man  '  cunning  of  fence,'  and  a  wily  antago 
nist;  so  was  Ogle;  so  was  Hampton;  Cox  was  a  combative  man;  but  Judge  Black 
devoted  himself  to  the  acquisition  of  a  scientific  knowledge  of  the  law.  He  studied  it  as 
a  science,  more  than  any  of  them,  and  as  such  a  lawyer  he  rose  to  the  acknowledged  head 
of  the  American  bar." — Hon.  JOHN  R.  EDIE,  Address  at  the  Somerset  Bar  Meeting. 

f  He  succeeded  the  Hon.  Alexander  Thomson,  for  whose  character  as  a  man  and 
a  judge  he  entertained  the  most  profound  reverence.  Shortly  before  his  death  he 
declared  to  the  writer  his  resolution  to  put  in  some  appropriate  form,  for  the  benefit 
of  posterity,  his  high  estimate  of  Judge  Thomson.  The  latter  presided  in  the  courts  of 
the  district  from  1831  to  1842.  He  was  the  father  of  Frank  Thomson,  Esq.,  Vice- 
President  of  the  Pennsylvania  Railroad  Company,  and  of  Dr.  William  Thomson,  of 
Philadelphia. 


6  BIOGRAPHICAL  SKETCH. 

David  E.  Porter  in  1838.  He  entered  into  that  contest  with  pen  and 
voice,  and  they  were  a  pen  and  a  voice  which  told  all  the  more  because 
they  were  not  hackneyed.  This  circumstance  may  have  been  remem 
bered  when  the  Governor,  unable  to  make  a  satisfactory  selection 
among  the  contending  candidates  for  judge,  selected  him  as  the  safest 
deliverance  from  a  troublesome  and  politically  dangerous  contention. 
His  judicial  conduct  speedily  vindicated  the  choice  of  the  Governor, 
and  carried  the  fame  of  the  young  judge  far  beyond  the  confines  of 
his  long,  mountain  district,  which  he  loved  to  ride  on  the  back  of  the 
most  spirited  horse  he  could  find.  With  the  exception  of  an  address 
delivered  at  Bedford  on  the  death  of  General  Jackson,  and  an  address 
entitled  "Patriotism"  before  the  literary  societies  of  Washington 
College,  Judge  Black,  during  this  period  of  ten  years,  confined  him 
self  strictly  to  the  duties  of  the  bench.  But  he  was  recognized — 
notably  so  after  the  Jackson  address — as  one  of  the  foremost  men  in 
the  State  on  the  Democratic  side,  and  was  more  or  less  discussed  as  a 
candidate  for  Governor,  for  Senator  in  Congress,  and  for  Judge  of  the 
Supreme  Court. 

In  1851  a  full  bench  of  justices  of  the  Supreme  Court  of  Pennsyl 
vania  was  chosen  under  the  constitutional  amendment  of  1850  mak 
ing  the  judiciary  elective.  Judge  Black  was  nominated  by  the  Demo 
cratic  State  Convention,  and,  receiving  a  larger  number  of  votes  than 
any  candidate  on  the  ticket,  was  elected,  with  Gibson,  Lewis,  Lowrie, 
and  Coulter.  All  of  these  were  Democrats  except  Coulter,  and  all  of 
them  were  men  who  adorned  the  bench  to  which  they  were  then  ele 
vated.  In  the  lottery  which  determined  the  matter  for  that  first 
bench  of  judges  chosen  by  the  people  at  the  polls,  Judge  Black  drew 
the  short  term  and  became  Chief-Justice.  In  1854,  his  term  as  Chief- 
Justice  having  expired,  he  was  elected  an  Associate  Justice  by  a  very 
large  majority,  although  the  head  of  his  ticket,  the  Democratic  can 
didate  for  Governor,  was  defeated.  Of  the  work  of  the  court,  of  his 
numerous  opinions  from  fourth  Harris  to  fifth  Casey,  and  of  the  deep 
impression  he  left  upon  the  jurisprudence  of  the  State,  this  hasty 
sketch  is  not  the  place  to  speak.* 

*  He  studied  law,  and  soon  became  a  judge,  and,  until  he  made  his  appearance  in 
this  city  as  a  Cabinet  minister  in  1857,  his  attainments  and  abilities  were  mainly  exhib 
ited  in  high  judicial  stations.  For  fifteen  years  he  administered  justice  according  to  law 
in  his  native  State  of  Pennsylvania,  and  in  the  reports  of  his  opinions  in  cases  decided 
during  that  period  will  be  found  splendid  and  abundant  evidence  of  his  enlightened 


BIOGRAPHICAL   SKETCH.  7 

Mr.  Buchanan's  election  to  the  presidency  in  1856  was  an  event 
of  great  moment  to  the  politicians  of  his  native  State.  Judge  Black 
had,  from  the  time  Mr.  Buchanan  was  first  seriously  named  for  that 
great  place,  earnestly  favored  his  pretensions,  but  he  was  able  to 
assist  in  his  elevation  only  by  the  quiet  personal  influence  of  a  judge 
removed  from  partisan  politics.  He  had  no  claims  upon  the  Presi 
dent-elect.  He  knew  that  his  name  had  been  under  consideration  for 
a  place  in  the  Cabinet,  but  he  supposed  it  had  been  finally  dismissed, 
and  he  had  taken  passage  for  a  brief  vacation  in  Europe,  when — again 
as  a  compromise  between  contending  factions — he  was,  on  the  7th 

wisdom,  his  learning  in  the  law,  his  lofty  and  sound  morality,  all  conveyed  with  a  felicity 
of  language  and  eloquence  of  expression  that  may  even  here  in  this  court-room  be 
declared  to  be  unsurpassed. 

When  in  1852  he  pronounced  from  the  Supreme  Bench  of  Pennsylvania  that  mas 
terly  eulogium  upon  the  illustrious  Gibson,  how  many  then  felt  and  how  many  more  feel 
now  that  he  was  unconsciously  describing  his  own  marvelous  gifts  and  admirable  quali 
ties  ! — Senator  BAYARD,  of  Delaware. 

It  has  been  said,  in  reproach  of  Pennsylvania,  that  her  two  greatest  citizens  were 
Albert  Gallatin,  of  Switzerland,  and  Benjamin  Franklin,  of  Massachusetts.  But  in  a 
comparison  of  jurists  the  Commonwealth  of  Pennsylvania  can  boastfully  point  to  Gibson 
and  Black,  and  ask  the  entire  nation  to  produce  their  peers.  I  do  not  propose  to  analyze 
Judge  Black's  judicial  character,  nor  to  present  a  catalogue  of  his  legal  opinions. 
Every  English-speaking  lawyer  knows  how  much  he  has  contributed  to  the  purity  and 
power  and  nobleness  of  our  jurisprudence.  He  has  erected  his  own  immortal  monu 
ment,  and  in  every  forum  is  his  cenotaph  cherished  and  honored  by  the  profession  he 
loved  and  adorned. — Hon.  JAMES  H.  HOPKINS,  of  Pennsylvania, 

To  this  generous  store  of  knowledge  he  added  fluency  of  speech,  both  in  public 
address  and  private  conversation,  and  a  style  of  writing  which  was  at  once  unique,  pow 
erful,  and  attractive.  He  had  attained  unto  every  excellence  of  mental  discipline  de 
scribed  by  Lord  Bacon.  Reading  had  made  him  a  full  man,  talking  a  ready  man, 
writing  an  exact  man.  The  judicial  literature  of  the  English  tongue  may  be  searched 
in  vain  for  finer  models  than  are  found  in  the  opinions  of  Judge  Black  when  he  sat, 
and  was  worthy  to  sit,  as  the  associate  of  John  Bannister  Gibson  on  the  Supreme 
Bench  of  Pennsylvania. — "  Twenty  Years  of  Congress,"  by  JAMES  G.  ELAINE. 

To  the  expression  by  Judge  Black  respecting  Gibson—"  The  State  can  have  no  bet 
ter  thing  to  be  proud  of  than  such  a  character;  in  all  her  store  she  has  no  richer 
jewel  to  display  than  the  fame  of  such  a  son  " — we  can  add,  she  has  now  another  jewel 
equally  rich,  and  she  displays  them  together  with  equal  pride.  It  would  be  a  most 
acceptable  service  to  the  profession  were  such  an  essay  as  that  on  Gibson  by  Porter 
prepared  respecting  Black,  devoted  mainly  to  his  work  upon  the  bench  and  at  the  bar. 
It  would  be  a  fitting  accompaniment,  and  the  two  should  be  bound  together  and  placed 
in  every  law  library  of  the  State. — T.  J.  KEENAN,  Esq.,  Pittsburg,  Pennsylvania. 


8  .BIOGRAPHICAL  SKETCH. 

of  March,  1857,  unexpectedly  summoned  to  the  post  of  Attorney- 
General. 

Although  that  was  a  Cabinet  as  completely  dominated  by  the  per 
sonality  of  the  President  as  any  in  the  previous  history  of  the  coun 
try,  not  excepting  Jefferson's  and  hardly  excepting  Jackson's,  Judge 
Black  at  once  became  a  conspicuous  figure.  His  influence  with  the 
President,  derived,  not  as  has  been  generally  supposed  from  close  per 
sonal  relations  in  private  life,  but  from  pure  force  of  the  intellect  and 
character  of  the  Attorney-General,  soon  became  very  great,  and  re: 
mained,  perhaps,  stronger  than  that  of  any  other  member  to  the  end. 
The  heads  of  the  other  departments  signified  their  confidence  in  the 
Attorney-General  by  the  number  of  opinions  they  required  from  him, 
and  the  nature  of  the  business  they  referred  to  him. 

But  the  most  extraordinary  draft  upon  the  office  during  his  in 
cumbency  was  the  management  of  that  class  of  cases,  monstrous  alike 
in  their  number,  magnitude,  and  character,  known  as  "  California  land 
claims."  After  the  conquest,  alleged  Mexican  grants  were  presented 
to  the  Board  of  Land  Commissioners  covering  19,148  square  miles  ! 
Nearly  all  of  them  were  confirmed  by  the  board  before  the  system  of 
fraud  had  been  discovered  or  even  suspected.  Most  of  them  passed 
securely  through  the  United  States  District  Court,  but  were  finally 
exposed  and  defeated  in  the  Supreme  Court.  The  value  of  the  prop 
erty,  public  and  private,  covered  by  these  forged  titles  was  estimated 
at  $150,000,000.  The  best  part  of  San  Francisco  was  involved  in  no 
less  than  five  fraudulent  claims ;  and  Sacramento,  Stockton,  Marys- 
ville,  and  Petaluma  were  all  claimed  under  false  grants,  forged  after 
the  American  occupation.  Almost  every  site  upon  which  the  United 
States  subsequently  erected  its  public  buildings,  forts,  and  arsenals,  was 
similarly  assailed.  But  the  Attorney-General  organized  a  system  of 
thorough  investigation  ;  the  methods  of  the  forgers  were  ascertained ; 
a  table  of  professional  perjurers  was  constructed  ;  and  one  after  another 
the  forged  claims  were  stricken  down.  The  amount  of  property  thus 
saved  to  the  United  States  and  to  innocent  settlers  and  purchasers 
aggregated  hundreds  of  millions  of  dollars.  It  was  the  most  tremen 
dous  professional  labor  and  the  most  complete  professional  success 
on  record  in  this  or  any  country.  It  occupied  the  three  and  a  half 
years  of  Judge  Black's  term  as  Attorney-General,  and,  if  it  earned 
him  the  enduring  hostility  of  the  many  and  powerful  conspirators, 
baffled  by  his  firmness  and  vigilance,  it  was  one  of  the  most  honora- 


BIOGRAPHICAL  SKETCH.  9 

ble  and,  to  himself,  one  of  the  most  satisfactory  of  his  many  public 
services. 

The  last  months  of  Mr.  Buchanan's  administration  constitute  the 
most  important  period  of  equal  length  in  American  history,  the  first 
months  of  Mr.  Lincoln's  not  excepted.  It  has  hitherto  been  explored 
mainly  for  materials  upon  which  to  accuse  and  malign  the  party  then 
in  power.  It  has  been  covered  by  only  two  books  with  any  sort  of 
pretensions  to  historical  accuracy  or  historical  candor.*  This  com 
piler  proposes  to  deal  with  it  fully  and  fairly  in  a  future  publication. 
For  the  present  the  following  summary  (but,  as  far  as  it  goes,  authen 
tic)  narrative  will  serve  to  show  Judge  Black's  relations  to  those  mo 
mentous  events  which  immediately  preceded  the  actual  opening  of 
the  great  civil  war.  \ 

"The  executive  administration  was  still  nominally  in  the  hands  of 
the  Democrats  ;  but  the  power  of  the  President  was  limited  by  law, 
and  his  moral  influence  had  ceased  with  the  rout  of  his  party.  In 
the  most  pressing  exigency  of  the  nation's  history,  he  could  not  get 
a  collector  of  customs  at  the  port  of  Charleston  confirmed  by  the  Sen 
ate,  although  it  seemed  perfectly  clear  then  that  the  initial  struggle 
for  the  Union  would  take  place  in  that  harbor.  All  eyes  were  turned 
toward  the  rising  sun.  Mr.  Lincoln's  policy  was  as  yet  a  profound 
mystery.  It  was  not  until  he  began  his  journey  to  Washington  that 
he  let  fall  any  intimations  which  might  help  the  country  to  a  con 
clusion  concerning  his  opinions.  But  when  he  did  speak  he  left  no 
room  for  doubt.  It  was  clear  that  he  thought  a  peaceful  solution  of 
the  difficulties  not  only  possible  but  supremely  desirable;  and  the 
employment  of  force,  or  even  the  suggestion  of  it,  by  his  predecessor 
in  office  would  disconcert  his  plans  and  disappoint  his  hopes.  To  the 
same  purpose  spoke  the  principal  newspaper  organ  of  his  party  at 
New  York,  and  the  principal  organ  of  his  Secretary  of  State  at 
Albany.  There  was  nothing  to  indicate  that  he  would  pursue  a  more 
warlike  policy  than  Mr.  Buchanan,  or  that  he  desired  his  partisans  in 
Congress  to  arm  the  President  with  the  powers  which  Mr.  Buchanan 
implored  them  to  give  him. 

"  When  Congress  met,  on  the  3d  of  December,  it  confirmed  by  its 
conduct  the  existing  impression.  It  acted  upon  none  of  the  Presi- 

*  "  Buchanan's  Defense,"  and  Curtis's  "  Life  of  James  Buchanan." 
f  From  a  paper  prepared  and  published  by  the  compiler  in  1874. 


10  BIOGRAPHICAL  SKETCH. 

dent's  recommendations,  and  smothered  indiscriminately  every  meas 
ure  that  looked  either  to  coercion  or  defense.  Mr.  Howard's  bill  to 
call  out  the  militia,  Mr.  Stanton's  bill  for  the  protection  and  recov 
ery  of  the  forts,  and  the  bill  to  provide  for  the  collection  of  duties, 
were  all  alike  impartially  killed  and  buried.  Nor  can  the  omission 
be  charged  to  the  account  of  oversight.  It  was  a  deliberate  refusal, 
upon  full  information,  to  give  the  President  the  power  required  to 
meet  the  rebellion.  It  was  universally  admitted  that  he  had  no  au 
thority  under  the  act  of  1795  to  call  out  the  militia.  It  was  never 
intimated  that  he  could  of  his  own  will  increase  the  regular  army  or 
navy,  or  that  he  might  execute  the  laws  by  military  force,  without 
the  intervention  of  judges  and  marshals.  And  if  he  had  hinted  his 
intention  to  usurp  these  powers,  or  any  others  which  did  not  legally 
belong  to  him,  there  is  no  reason  to  doubt  that  he  would  have  been 
impeached  within  twenty-four  hours. 

"  It  will  be  seen  as  the  history  develops  that  Mr.  Buchanan,  acting 
under  the  paramount  influence  of  General  Scott  and  Major  Anderson, 
was  betrayed  into  some  grave  errors  with  regard  to  Sumter ;  but  as  to 
the  constitutional  right  of  the  Government  to  reduce  a  revolt  of  any 
size  or  kind,  his  opinions  were  thoroughly  orthodox,  and  shared  by 
nine  tenths  of  his  countrymen.  The  Union,  he  held,  was  necessarily 
perpetual.  No  State  could  lawfully  withdraw  or  be  lawfully  expelled 
from  it.  The  Federal  Constitution  was  as  much  a  part  of  the  ( Con 
stitution  of  every  State  as  if  it  had  been  textually  inserted  therein.' 
The  Federal  Government  was  sovereign  within  its  own  sphere,  and 
'acted  directly  upon  the  individual  citizens  of  every  State.'  With 
in  these  limits  its  coercive  power  was  ample  to  defend  itself,  its  laws, 
and  its  property.  It  could  suppress  insurrections,  fight  battles,  con 
quer  armies,  disperse  hostile  combinations,  and  punish  any  or  all  of 
its  enemies.  It  could  meet,  repel,  and  subdue  all  those  who  rose 
against  it ;  but  it  could  not  obliterate  a  single  Commonwealth  from 
the  map  of  the  Union,  or  declare  indiscriminate  war  against  all  the 
inhabitants  of  a  section,  confounding  the  innocent  with  the  guilty, 
and  rushing  down  in  one  mighty  havoc  upon  friend  and  foe  alike. 
Such  was  the  opinion  of  the  Attorney-General,  and  we  shall  presently 
see  how  that  officer  interpreted  his  own  doctrines  as  the  conflict  deep 
ened  and  new  exigencies  arose.  The  President  adopted  these  views 
and  embodied  them  in  his  annual  message,  but  warned  Congress  that 
if  the  rising  insurrection  was  to  be  met  by  force,  the  law  as  it  stood 


BIOGRAPHICAL  SKETCH.  11 

was  fatally  defective.  The  acts  of  1795  and  1807  were  wholly  inade 
quate  to  the  present  occasion.  They  required  the  President  to  act  in 
concert  with  the  marshal  and  a  civil  posse  comitatus;  but  in  this  case 
—in  South  Carolina— the  marshal,  the  judges,  all  the  public  officers, 
and  all  the  people  were  on  one  side,  and  that  the  wrong  one.  With 
Congress  rested  the  whole  responsibility  of  peace  or  war,  and  with 
Congress  the  message  left  it. 

"The  original  draft  of  this  message  had  received  the  approval  of 
every  member  of  the  Cabinet  except  Mr.  Cobb,  Mr.  Thompson,  and 
Mr.  Cass.  The  two  former,  of  course,  objected  strongly  to  that  part 
of  it  which  denied  the  right  -of  secession.  Mr.  Cass  impressively  de 
manded  that  the  right  of  Congress  to  make  war  against  a  State  should 
be  denied  in  more  forcible  terms  than  the  President  had  used.  It 
was  so  modified  solely  to  meet  his  views  ;  but  the  venerable  Secretary 
was  so  deeply  affected  by  the  prospect  of  a  bloody  collision  between 
the  States  that  he  expressed  his  feelings  in  a  burst  of  tears.  Mr. 
Eloyd  was  loud  and  vehement  on  the  side  of  the  Union,  and  went  as 
far  as  the  farthest  in  support  of  the  President's  views. 

"  On  the  28th  of  December  three  gentlemen,  styling  themselves 
'Commissioners  of  South  Carolina,'  sent  a  communication  to  the 
President  offering  to  exhibit  their  credentials  and  proposing  to  treat 
with  'the  Government  of  the  United  States'  about  sundry  questions 
of  debt  and  property.  But  after  their  departure  from  home  the 
whole  aspect  of  affairs  had  been  changed  by  an  important  event. 
Major  Anderson,  the  Federal  commander  in  Charleston  Harbor,  had 
in  pursuance  of  a  plain  order  removed  his  little  force  from  Fort  Moul- 
trie  to  Fort  Sumter,  and  the  commissioners  threatened  to  ( suspend 
all  discussion '  while  in  the  very  act  of  opening  it  until  Major  Ander 
son's  proceedings  should  be  satisfactorily  explained. 

"Since  the  meeting  of  Congress  the  President's  Cabinet  had  been 
materially  changed.  Mr.  Cobb  and  Mr.  Cass  had  gone  out,  the  for 
mer  because  he  disapproved  the  annual  message,  and  the  latter  because 
the  force  in  Charleston  Harbor  had  not  been  increased.  The  vacan 
cies  were  filled  by  the  appointment  of  the  Attorney-General,  Jeremiah 
S.  Black,  Secretary  of  State ;  of  Edwin  M.  Stanton,  Attorney-Gen 
eral  ;  and  Philip  F.  Thomas,  of  Maryland,  Secretary  of  the  Treasury. 
Mr.  Thompson's  retirement  from  the  Interior  was  simply  a  question 
of  time. 

"  From  the  evening  of  the  27th  to  the  morning  of  the  31st — three 


12  BIOGRAPHICAL  SKETCH. 

days  and  four  nights — the  removal  of  Anderson  and  the  answer  to  the 
commissioners  were  under  discussion.  The  commissioners  had  ar 
rived  on  the  26th,  and  news  of  Anderson's  removal  was  received  on 
the  morning  of  the  27th.  That  morning,  when  the  Cabinet  assem 
bled  and  the  startling  news  from  Charleston  was  announced,  the  Sec 
retary  of  State  expressed  his  strong  approbation  of  Anderson's  move 
ment,  and  asserted  that  it  was  in  perfect  accordance  with  his  orders. 
It  happened  that  nobody  else  recollected  the  precise  terms  of  those 
orders ;  the  Secretary  of  "War  denied  that  they  contained  anything 
which  could  justify  the  removal,  and  the  President  was  inclined  to 
agree  with  him  upon  the  question  of  fact.  The  orders  were  sent  for 
and  read,  and  it  was  found  that  the  instructions  were  explicit  and 
clear  to  remove  into  any  fort  in  the  harbor  which  would  increase 
Major  Anderson's  means  of  resistance,  as  soon  as  he  had  '  tangible 
evidence  of  a  design  to  attack '  him.  Some  discussion  on  the  tangi 
bility  of  the  evidence  ensued,  but  this  was  soon  settled,  for  the  words 
could  mean  nothing  unless  they  meant  that  he  should  move  whenever 
he  had  a  well-grounded  apprehension  that  an  assault  would  be  made, 
and  he  was  left  to  judge  of  that  for  himself.  The  President  could 
not  choose  but  support  the  officer  who  had  in  apparent  good  faith 
obeyed  the  instructions  upon  which  he  was  bound  to  act.  Mr.  Floyd 
then  insisted  with  much  earnestness  that  the  troops  should  be  entirely 
withdrawn  from  all  the  forts  in  Charleston  Harbor,  and  he  put  his 
proposition  in  writing,  but  it  received  no  support  from  any  of  his 
colleagues  and  no  countenance  from  the  President.  The  President 
thought,  as  he  afterward  said,  that  the  tone  in  which  Mr.  Floyd  read 
the  paper  was  loud  and  discourteous,  but  at  the  time  he  rebuked  it 
only  with  that  quiet  dignity  under  which  the  courage  of  many  a 
stronger  man  had  wilted  before. 

"  Mr.  Floyd's  views  or  wishes  on  this  or  any  subject  had  for  some 
time  before  ceased  to  have  the  slightest  influence  on  the  minds  of  the 
President  and  the  other  members  of  the  Administration.  He  was 
bold,  brilliant,  and  true-hearted  to  his  friends,  but  his  political  prin 
ciples  hung  loosely  upon  him,  and  he  was  entirely  incapable  of  man 
aging  pecuniary  affairs.  His  private  business  was  always  in  con 
fusion,  and  that  of  the  War  Department  was  soon  brought  to  a  simi 
lar  condition.  His  colleagues  bore  his  shortcomings  impatiently,  and 
the  President  was  vexed  and  distressed  with  complaints  of  maladmin 
istration.  Mr.  Buchanan's  wrath  was  thoroughly  aroused  when  he 


BIOGRAPHICAL  SKETCH.  13 

heard  of  the  Secretary's  assent  to  the  payment  of  a  large  claim  in  the 
face  of  the  Attorney-General's  opinion  that  it  was  unjust  and  illegal. 
By  his  stern  command  the  money  was  stopped  before  it  reached  the 
hands  of  the  claimant.  When  he  discovered  that  Mr.  Floyd  had 
accepted  heavy  bills  drawn  by  contractors  long  in  advance  of  their 
earnings,  he  sent  the  Vice-President,  Mr.  Breckinridge,  to  him  with 
a  request  that  he  would  resign,  couched  in  terms  which  made  him 
clearly  understand  that  he  would  be  removed  if  he  did  not. 

"  This  happened  on  the  23d  of  December,  and  from  that  time  Mr. 
Floyd  was  regarded  as  virtually  out  of  office.  Until  then  he  was  an 
outspoken  opponent  of  secession,  and  when  he  came  uninvited  to  the 
Cabinet  meetings  of  the  27th  and  took  the  side  of  the  secessionists 
on  the  question  under  discussion,  it  was  plainly  seen  that  his  object 
was  to  make  an  issue  on  which  he  could  resign,  without  reference  to 
the  real  cause.  He  did,  in  fact,  resign  immediately  afterward,  and 
gave  as  a  reason  the  difference  between  him  and  the  President  about 
the  treatment  of  South  Carolina.  It  was  a  cunning  and  well-managed 
manoeuvre,  and  some  of  his  colleagues,  who  liked  him  personally, 
were  willing  to  see  it  succeed.  The  President  was  induced  with  some 
difficulty  to  accept  the  resignation  without  commentary,  but  three 
days  later  a  criminal  prosecution  was  ordered  against  him  for  malver 
sation  in  office  and  a  conspiracy  to  defraud  the  United  States,  based 
on  his  transactions  with  the  contractors  already  referred  to.  An  in 
dictment  was  found,  but  it  was  never  tried,  because  he  had  testified 
on  the  whole  subject  before  a  committee  of  the  House  of  Eepresenta- 
tives,  and  there  was  an  act  of  Congress  which  forbade  that  any  person 
should  be  '  held  to  answer  criminally  in  any  court  of  justice  for  any 
act  or  fact '  concerning  which  he  had  so  testified.  It  is  impossible  to 
say  what  would  have  been  the  result  of  a  trial.  There  is  no  evidence 
against  him  of  anything  worse  than  reckless  imprudence  ;  not  a  cent 
from  any  money  proceeding  from  these  premature  acceptances  could 
be  traced  to  his  hands  ;  and  it  is  very  clear  that  he  had  no  connection 
whatever,  in  thought,  word,  or  deed,  with  the  abstraction  of  the  In 
dian  trust  bonds  from  the  Interior  Department.  He  left  "Washington 
empty-handed — so  poor  that  he  had  to  borrow  the  money  which  paid 
the  expenses  of  taking  his  family  to  Virginia. 

"Late  in  the  evening  of  Saturday,  the  29th  of  December,  the  Presi 
dent  laid  before  the  Cabinet  the  result  of  his  own  reflections  in  the 
form  of  an  answer  to  the  South  Carolina  commissioners.  It  was  such 


U  BIOGRAPHICAL  SKETCH. 

a  paper  as  none  of  them  expected  to  see.  One  member  only  approved 
the  document  and  five  opposed  it,  but  opposed  it  for  different  reasons. 
Messrs.  Black,  Holt,  and  Stanton  objected  that  it  conceded  too  much 
to  the  contumacious  State ;  and  Messrs.  Thomas  and  Thompson 
thought  its  whole  tone  was  so  hostile  to  the  claim  of  South  Carolina 
that  it  would  make  the  immediate  outbreak  of  civil  war  inevitable. 
Mr.  Toucey  was  fully  with  the  President.  Not  much  criticism  was 
bestowed  on  the  document  at  the  time.  The  members  all  thought 
that  further  discussion  would  be  useless  ;  in  their  past  experience  they 
had  seen  how  inflexible  were  Mr.  Buchanan's  resolutions  when  once 
formed.  Each  was  left  to  decide  for  himself  what  his  duty  required 
him  to  do.  It  seemed  certain  that  the  Cabinet  was  about  to  explode 
and  fly  off  in  opposite  directions. 

"  On  the  next  morning,  Sunday,  the  30th,  Mr.  Black  communicated 
to  Messrs.  Stanton,  Holt,  and  Toucey  his  conviction  that  the  Presi 
dent's  mind  was  fixed  beyond  all  hope  of  change,  and  his  own  deter 
mination  to  resign  in  consequence.  Mr.  Toucey  told  the  President, 
and  Mr.  Black  was  sent  for.  He  went  reluctantly,  dreading  the 
effect  upon  his  own  feelings  of  the  appeal  which  he  knew  Mr.  Bu 
chanan  would  make  to  the  sacred  friendship  which  had  lasted  through 
so  many  years  of  prosperity,  and  which  certainly  ought  not  to  be 
broken  in  that  hour  of  trouble  and  adversity.  What  was  said  between 
them  during  that  interview  need  not  be  told,  but  it  ended  in  the  offer 
of  the  President  to  let  Mr.  Black  take  the  document  in  question, 
strike  out  what  he  thought  objectionable,  and  insert  what  was  neces 
sary  to  make  it  meet  his  own  views  ;  but  this  must  be  done  imme 
diately.  Mr.  Black  went  to  the  Attorney-General's  office,  and  there 
wrote  the  following  paper,  which  Mr.  Stanton  copied  as  rapidly  as 
the  sheets  were  thrown  to  him  : 

"'Memorandum  for  the  President  on  the  subject  of  the  paper  drawn 
up  by  him  in  reply  to  the  Commissioners  of  South  Carolina. 

"  '  1.  The  first  and  the  concluding  paragraph  both  seem  to  acknowl 
edge  the  right  of  South  Carolina  to  be  represented  near  this  Govern 
ment  by  diplomatic  officers.  That  implies  that  she  is  an  independent 
nation,  with  no  other  relations  to  the  Government  of  the  Union  than 
any  other  foreign  power.  If  such  be  the  fact,  then  she  has  acquired 
all  the  rights,  powers,  and  responsibilities  of  a  separate  government 
by  the  mere  ordinance  of  secession  which  passed  her  convention  a  few 
days  ago.  But  the  President  has  always,  and  particularly  in  his  late 


BIOGRAPHICAL  SKETCH.  15 

message  to  Congress,  denied  the  right  of  secession,  and  asserted  that 
no  State  could  throw  off  her  Federal  obligations  in  that  way.  More 
over,  the  President  has  also  very  distinctly  declared  that  even  if  a  State 
could  secede  and  go  out  of  the  Union  at  pleasure,  whether  by  revolu 
tion  or  in  the  exercise  of  a  constitutional  right,  he  could  not  recog 
nize  her  independence  without  being  guilty  of  usurpation.  I  think, 
therefore,  that  every  word  and  sentence  which  implies  that  South  Caro 
lina  is  in  an  attitude  which  enables  the  President  to  "  treat "  or  nego 
tiate  with  her,  or  to  receive  her  commissioners  in  the  character  of  dip 
lomatic  ministers  or  agents,  ought  to  be  stricken  out  and  an  explicit 
declaration  substituted,  which  would  reassert  the  principles  of  the 
message.  It  is  surely  not  enough  that  the  words  of  the  message  be 
transcribed  if  the  doctrine  there  announced  be  practically  abandoned 
by  carrying  on  a  negotiation. 

"  i  2.  I  would  strike  out  all  expressions  of  regret  that  the  commis 
sioners  are  unwilling  to  proceed  with  the  negotiations,  since  it  is  very 
clear  that  there  can  be  no  negotiation  with  them,  whether  they  are 
willing  or  not. 

"  '  3.  Above  all  things,  it  is  objectionable  to  intimate  a  willingness 
to  negotiate  with  the  State  of  South  Carolina  about  the  possession  of 
a  military  post  which  belongs  to  the  United  States,  or  to  propose  any 
adjustment  of  the  subject  or  any  arrangement  about  it.  The  forts  in 
Charleston  Harbor  belong  to  this  Government — are  its  own,  and  can 
not  be  given  up.  It  is  true  they  might  be  surrendered  to  a  superior 
force,  whether  that  force  be  in  the  service  of  a  seceding  State  or  a  for 
eign  nation.  But  Fort  Sumter  is  impregnable  and  can  not  be  taken 
if  defended  as  it  should  be.  It  is  a  thing  of  the  last  importance  that 
it  should  be  maintained  if  all  the  power  of  this  nation  can  do  it ;  for 
the  command  of  the  harbor  and  the  President's  ability  to  execute  the 
revenue  laws  may  depend  on  it. 

"  ' 4.  The  words  "coercing  a  State  by  force  of  arms  to  remain  in 
the  confederacy — a  power  which  I  do  not  believe  the  Constitution  has 
conferred  on  Congress,"  ought  certainly  not  be  retained.  They  are  too 
vague,  and  might  have  the  effect  (which  I  am  sure  the  President  does 
not  intend)  to  mislead  the  commissioners  concerning  his  sentiments. 
The  power  to  defend  the  public  property — to  resist  an  assailing  force 
which  unlawfully  attempts  to  drive  out  the  troops  of  the  United  States 
from  one  of  the  fortifications,  and  to  use  military  and  naval  forces  for 
the  purpose  of  aiding  the  proper  officers  of  the  United  States  in  the 
execution  of  the  laws — this,  as  far  as  it  goes,  is  coercion,  and  may  very 
well  be  called  "  coercing  a  State  by  force  of  arms  to  remain  in  the 
Union."  The  President  has  always  asserted  his  right  of  coercion  to 
that  extent.  He  merely  denies  the  right  of  Congress  to  make  offensive 
war  upon  a  State  of  the  Union  as  such  might  be  made  upon  a  foreign 
government. 


16  BIOGRAPHICAL  SKETCH. 

"  '  5.  The  implied  assent  of  the  President  to  the  accusation  which 
the  commissioners  make  of  a  compact  with  South  Carolina  by  which 
he  was  bound  not  to  take  whatever  measures  he  saw  fit  for  the  defense 
of  the  forts,  ought  to  be  stricken  out,  and  a  flat  denial  of  any  such 
bargain,  pledge,  or  agreement  inserted.  The  paper  signed  by  the  late 
members  of  Congress  from  South  Carolina  does  not  bear  any  such  con 
struction,  and  this,  as  I  understand,  is  the  only  transaction  between 
South  Carolina  and  him  which  bears  upon  the  subject  either  directly 
or  indirectly.  I  think  it  deeply  concerns  the  President's  reputation 
that  he  should  contradict  this  statement,  since  if  it  be  undenied  it 
puts  him  in  the  attitude  of  an  executive  officer  who  voluntarily  dis 
arms  himself  of  the  power  to  perform  his  duty,  and  ties  up  his  hands 
so  that  he  can  not,  without  breaking  his  word,  "  preserve,  protect,  and 
defend  the  Constitution,  and  see  the  laws  faithfully  executed. "  The 
fact  that  he  pledged  himself  in  any  such  way  can  not  be  true.  The 
commissioners,  no  doubt,  have  been  so  informed.  But  there  must  be 
some  mistake  about  it.  It  arose,  doubtless,  out  of  the  President's  anx 
ious  and  laudable  desire  to  avoid  civil  war,  and  his  often-expressed 
determination  not  even  to  furnish  an  excuse  for  an  outbreak  at  Charles 
ton  by  re-enforcing  Major  Anderson  unless  it  was  absolutely  necessary. 

"  '  6.  The  remotest  expression  of  a  doubt  about  Major  Anderson's 
perfect  propriety  of  behavior  should  be  carefully  avoided.  He  is  not 
merely  a  gallant  and  meritorious  officer  who  is  entitled  to  a  fair  hear 
ing  before  he  is  condemned.  He  has  saved  the  country,  I  solemnly 
believe,  when  its  day  was  darkest  and  its  perils  most  extreme.  He  has 
done  everything  that  mortal  man  could  do  to  repair  the  fatal  error 
which  the  Administration  have  committed  in  not  sending  down  troops 
enough  to  hold  all  the  forts.  He  has  kept  the  strongest  one.  He 
still  commands  the  harbor.  We  may  still  execute  the  laws  if  we  try. 
Besides,  there  is  nothing  in  the  orders  which  were  sent  to  him  by  the 
War  Department  which  is  in  the  slightest  degree  contravened  by  his 
act  of  throwing  his  command  into  Fort  Sumter.  Even  if  those  orders 
sent  without  your  knowledge  did  forbid  him  to  leave  a  place  where 
his  men  might  have  perished,  and  shelter  them  under  a  stronger  posi 
tion,  we  ought  all  of  us  to  rejoice  that  he  broke  such  orders. 

"  i  7.  The  idea  that  a  wrong  was  committed  against  South  Carolina 
by  moving  from  Fort  Moultrie  to  Fort  Sumter  ought  to  be  repelled  as 
firmly  as  may  be  consistent  with  a  proper  respect  for  the  high  charac 
ter  of  the  gentlemen  who  compose  the  South  Carolina  Commission. 
It  is  a  strange  assumption  of  right  on  the  part  of  that  State  to  say 
that  our  United  States  troops  must  remain  in  the  weakest  position  they 
can  find  in  the  harbor.  It  is  not  a  menace  of  South  Carolina  or  of 
Charleston,  or  any  menace  at  all.  It  is  simple  self-defense.  If  South 
Carolina  does  not  attack  Major  Anderson,  no  human  being  will  be 
injured  ;  for  there  certainly  can  be  no  reason  to  believe  that  he  will 


BIOGRAPHICAL  SKETCH.  17 

commence  hostilities.  The  apparent  objection  to  his  being  in  Fort 
Sumter  is  that  he  will  be  less  likely  to  fall  an  easy  prey  to  his  assail 
ants. 

" '  These  are  the  points  on  which  I  would  advise  that  the  paper  be 
amended.  I  am  aware  that  they  are  too  radical  to  permit  much  hope 
of  their  adoption.  If  they  are  adopted  the  whole  paper  will  need  to 
be  recast.  But  there  is  one  thing  not  to  be  overlooked  in  this  terrible 
crisis.  I  entreat  the  President  to  order  the  Brooklyn  and  the  Mace 
donian  to  Charleston  without  the  least  delay,  and  in  the  mean  time 
send  a  trusty  messenger  to  Major  Anderson  to  let  him  know  that  his 
Government  will  not  desert  him.  The  re-enforcement  of  troops  from 
New  York  or  Old  Point  Comfort  should  follow  immediately.  If  this 
be  done  at  once  all  may  yet  be  not  well,  but  comparatively  safe.  If 
not,  I  can  see  nothing  before  us  but  disaster  and  ruin  to  the  country. ' 

"  The  original  of  this  paper  went  to  the  President,  but  Mr.  Stan- 
ton's  copy  was  retained  by  him  and  by  him  indorsed  '  Observations 
on  Correspondence,  President  S.  C.  Com.,  by  J.  S.  B.'  Although 
Judge  Black  took  the  entire  responsibility  of  it,  indited  every  word 
of  it  himself,  and  spoke  throughout  in  the  first  person  singular,  it 
undoubtedly  embodies  the  sentiments  of  Mr.  Stanton  also.  He  com 
mented  upon  it  with  strong  expressions  of  delight,  and  Mr.  Holt,  who 
saw  it  the  same  day,  equally  approved  it.  Mr.  Stanton  would  have 
resigned  with  Mr.  Black  if  the  views  of  the  latter  (which  were  also 
his  own)  had  not  been  adopted  ;  Mr.  Holt,  perhaps,  would  have  done 
the  same,  but  he  did  not  say  so.  There  never  was  any  talk  or  sug 
gestion  or  threat,  absolute  or  conditional,  of  resignation  by  any 
Northern  member  of  the  Administration  other  than  what  is  here 
stated.  After  the  transfer  of  Mr.  Holt  to  the  War  Department,  and 
the  resignation  of  Messrs.  Thomas  and  Thompson,  the  Cabinet  con 
sisted  of  Messrs.  Black,  Dix,  Holt,  Toucey,  Stanton,  and  King. 
They  continued  in  perfect  harmony  with  each  other  until  the  end. 
If  any  exception  to  this  statement  be  required,  it  must  be  made  with 
reference  to  the  arrangement  which  took  place  about  Fort  Pickens. 
General  Scott  urgently  recommended  this  '  truce/  as  he  afterward 
called  it.  Mr.  Holt  and  Mr.  Toucey  gave  it  their  approbation,  and 
Messrs.  Black  and  Stanton  opposed  it ;  the  other  members  gave  no 
opinion.  The  President  thought  the  General-in-Chief  was  manifestly 
right,  but  there  was  very  little  discussion  about  it.  On  the  general 
principles  which  controlled  them,  and  on  the  details  of  business,  they 
were  in  perfect  accord. 


18  BIOGRAPHICAL   SKETCH. 

"The  'Observations'  were  the  last  effort  in  the  single-handed 
struggle  of  one  man  to  alter  a  decision  which  had  stood  immovable 
against  the  united  assault  of  himself  and  two  of  his  colleagues.  Un 
expectedly  it  succeeded.  The  President  yielded  to  this  earnest  appeal 
much  that  he  had  previously  denied  with  inflexible  firmness — how 
much  the  reader  may  ascertain  by  a  comparison  of  this  paper  with 
the  final  answer  to  the  commissioners.  Mr.  Buchanan  had  always 
felt  in  full  the  deep  responsibility  which  rested  upon  him.  He  was 
anxious  to  avoid  a  collision  which  would  prevent  accommodation, 
hurry  the  border  States  out  of  the  Union,  and  precipitate  a  civil  war 
for  which  the  Government  was  totally  unprepared.  But  he  had  never 
for  a  moment  willingly  contemplated  the  surrender  of  the  forts  at 
Charleston.  On  the  contrary,  he  had  uniformly  declared,  before  the 
election  and  after,  that  if  those  forts  should  be  given  up  he  would 
'  rather  die  than  live. ' 

"  On  the  3d  of  March,  1861,  the  Thirty-ninth  Congress  reached  the 
prescribed  period  of  its  existence  and  died  a  constitutional  death.  Its 
last  session  of  three  months  was  spent  in  full  view  of  an  awful  public 
calamity,  which  it  made  no  effort  to  avert  or  to  mitigate.  It  saw  the 
nation  compassed  round  with  a  frightful  danger,  but  it  proposed  no 
plan  either  of  conciliation  or  defense.  It  adjourned  forever,  and  left 
the  law  precisely  as  it  found  it. 

"  Thus  the  Executive  had  been  left  to  struggle  alone  against  a 
revolution  which  the  constitutional  powers  of  both  the  Legislature  and 
the  Executive  would  probably  have  been  insufficient  to  check.  He 
was  almost  powerless,  but  none  the  less  resolved  to  put  forth  the  little 
strength  he  had.  He  was  solemnly  assured  by  the  highest  authority 
that  South  Carolina  would  not  attack  any  of  the  forts  in  Charleston 
Harbor  in  the  circumstances  which  then  existed.  But,  'to  guard 
against  surprise/  an  expedition  as  powerful  as  his  limited  means 
would  afford  'was  prepared  early  in  December  and  held  in  readiness 
to  re-enforce  Anderson,  and  an  officer  was  dispatched  to  acquaint  him 
with  the  fact  and  order  him  to  defend  himself  to  the  last  extremity.' 

"For  nearly  a  month  the  man-of-war  Brooklyn  lay  at  Fortress 
Monroe  awaiting  the  proper  moment  to  take  on  board  three  hundred 
disciplined  troops,  with  provisions  and  munitions  of  war,  to  be  thrown 
into  Fort  Moultrie.  At  one  time  it  appears  the  Secretary  of  War 
(Floyd)  was  urgent  for  sending  her  off  immediately,  but  was  met  by 
a  professional  opinion  from  General  Scott  that  she  ought  not  to  go 


BIOGRAPHICAL  SKETCH.  19 

at  all.  But  on  the  30th  the  President  made  up  his  mind  to  succor 
Anderson  at  all  hazards.  The  latter  had  now  removed  to  Sumter,  the 
South  Carolinians  had  seized  all  the  unoccupied  forts,  and  there  was 
no  longer  any  reason  for  delay.  But  again  General  Scott  interposed. 
He  did  not  wish  the  great  steamer  with  the  three  hundred  veterans  to 
be  sent  from  Fortress  Monroe,  but  recommended  instead  a  sloop-of- 
war  and  cutter  with  two  hundred  and  fifty  raw  recruits  from  New 
York.  The  President  promptly  overruled  him,  and  directed  the 
Secretaries  of  War  and  Navy  to  dispatch  the  Brooklyn.  The  neces 
sary  orders  were  issued  through  General  Scott,  who,  instead  of  trans 
mitting  them  to  the  proper  officers,  put  them  into  his  pocket,  and 
called  to  '  congratulate  '  the  President  on  the  fact  that  he  had  them 
there.  But  on  that  day  (December  31st)  the  President  had  commu 
nicated  his  answer  to  the  South  Carolina  commissioners,  and  before 
they  separated  both  he  and  the  general  came  to  the  conclusion  that 
the  order  to  the  Brooklyn  ought  to  await  the  reply  of  the  commis 
sioners.  By  the  courtly  soldier  this  was  considered  only  '  gentlemanly 
and  proper.' 

"  The  delay  for  this  purpose  lasted  until  the  2d  of  January,  when 
it  was  discovered  that  the  general,  who  had  acquiesced  in  the  plan  of 
sending  the  Brooklyn,  had  changed  his  mind  again,  and  would  now 
hear  to  nothing  else  but  a  merchant-vessel  and  the  recruits  from  New 
York.  With  great  reluctance  the  President  yielded,  and  the  unarmed 
Star  of  the  West  was  substituted  for  the  armed  and  powerful  Brook 
lyn.  She  sailed  on  the  5th,  and  while  entering  the  harbor  of  Charles 
ton  on  the  9th  was  fired  at  and  struck  by  shot  from  a  battery  on  Mor 
ris  Island,  when  she  wore  round  and  put  to  sea  again.  Intelligence 
of  this  battery  'among  the  sand-hills'  had  been  received  at  Wash 
ington  on  the  evening  of  the  5th,  but  the  Star  of  the  West  had 
gone,  and  could  neither  be  warned  nor  detained. 

"  It  was  hoped  that  the  mission  of  the  Star  of  the  West  would  re 
main  a  profound  secret  with  the  few  persons  whom  necessity  or  cour 
tesy  required  to  know  it.  On  the  2d  of  January — the  last  day  of  the 
delay  occasioned  by  waiting  for  the  answer  of  the  South  Carolina 
commissioners,  which  General  Scott  considered  so  gentlemanly  and 
proper — it  was  made  the  subject  of  a  prolonged  and  heated  discussion 
in  the  Cabinet.  It  ended  in  a  resolution  to  send  an  officer  to  Major 
Anderson  to  ascertain  whether  he  wanted  or  needed  re-enforcements. 
Here  Judge  Black,  apprehensive  of  another  delay,  interposed  a  ques- 


20  BIOGRAPHICAL  SKETCH. 

tion  :  '  Does  the  sending  of  a  messenger  imply  that  no  additional 
troops  are  to  be  sent  until  his  return  ?'  '  Judge  Black/  said  the 
President,  impatiently  raising  both  hands,  ( it  implies  nothing.'  But 
just  at  this  juncture,  while  Mr.  Holt  was  writing  down  the  interroga 
tories  to  be  propounded  to  Anderson,  the  answer  of  the  commission 
ers  arrived.  It  excited  so  much  disgust  and  indignation  that  there 
could  be  no  question  as  to  the  proper  disposition  of  it.  The  Presi 
dent  wrote  across  it  his  curt  refusal  to  receive  it,  and  caused  it  to  be 
instantly  returned.  Then  turning  to  the  Secretary  of  War,  he  said, 
'  Re-enforcements  must  now  be  sent.'  The  order  was  made  in  the 
Cabinet ;  but  Mr.  Thompson,  the  Secretary  of  the  Interior,  did  not 
hear  it ;  perhaps  it  was  not  intended  that  he  should. 

"  For  many  days  Mr.  Thompson  had  been  exerting  himself  to  pre 
vent  the  Carolinians  from  attacking  Anderson — an  event  which  he 
believed  would  be  equally  disastrous  to  both  sections.  To  effect  this 
purpose — which,  to  say  the  least,  was  not  unpatriotic — many  telegrams 
were  passing  between  him  and  Judge  Longstreet,  an  eminent  and  com 
paratively  reasonable  citizen  of  South  Carolina.  So  late  as  the  5th, 
the  very  day  the  vessel  sailed,  he  answered  a  direct  inquiry  of  his  cor 
respondent  as  follows  :  (  I  can  not  speak  by  authority,  but  I  do  not 
believe  that  any  additional  troops  will  be  sent  to  Charleston  while  the 
present  status  lasts.  If  Fort  Sumter  is  attacked,  they  will  be  sent,  I 
believe.'  When  under  these  circumstances  he  heard  that  the  expe 
dition  was  actually  at  sea,  it  is  not  surprising  that  he  was  both  amazed 
and  shocked.  He  felt  that  he  had  been  not  only  slighted,  but  de 
ceived,  and  used  as  an  unconscious  instrument  to  produce  a  gross  and 
shameful  deception  upon  those  who  had  trusted  in  his  word  alone. 
Was  it  a  violation  of  his  official  duty  to  remove  a  delusion  which  owed 
its  existence  to  him  and  him  only  ?  He  had  reason  to  believe  that  his 
assurances  had  thus  far  done  much  to  keep  the  peace  and  to  save 
Sumter  from  assault.  Was  he  bound  to  withdraw  them  now  that  he 
knew  them  to  be  false,  and  thus  imperil  the  Star  of  the  West  with 
her  freight  of  human  life  ?  He  thought  he  was.  Having  given  an 
unofficial  opinion  that  re-enforcements  would  not  be  sent  at  the  very 
moment  when  they  were  actually  embarking,  he  determined  to  send 
an  unofficial  dispatch  to  say  that  they  had  in  fact  been  sent,  but  with 
out  his  knowledge  or  consent. 

"  He  wrote  this  dispatch  at  his  house,  and  exhibited  it  to  Judge 
Black,  who  had  gone  there  to  dissuade  him  from  the  act.  The  mes- 


BIOGRAPHICAL  SKETCH.  21 

senger  of  the  department,  William  W.  Cowling,  was  waiting  to  carry 
it  to  the  telegraph-office.  He  caught  a  few  words  of  the  earnest  dis 
pute  which  followed — Judge  Black  imploring  him  not  to  send  it,  and 
Mr.  Thompson  insisting  that  it  was  a  matter  which  deeply  concerned 
his  honor.  Cowling  was  convinced  by  the  argument  that  Judge 
Black  was  right  and  Mr.  Thompson  wrong.  Being  a  patriot  as  well 
as  an  official,  he  disobeyed  the  Secretary's  order,  put  the  perilous  dis 
patch  in  his  pocket,  and  left  the  Charlestonians  to  find  out  the-  altered 
state  of  affairs  as  best  they  could.  His  conduct  was  cordially  ap 
proved  by  Mr.  Kelly,  of  the  Interior,  Judge  Black,  and  the  Hon. 
John  Sherman,  to  each  of  whom  he  revealed  it  within  a  few  hours. 
This  dispatch,  it  is  very  clear,  was  never  sent,  but  it  is  equally  clear 
that  another  was.  Mr.  Thompson  may  have  suspected  the  fidelity  of 
Cowling,  or  may  have  received  another  telegram  from  Longstreet. 
At  all  events,  he  telegraphed  that  the  Star  of  the  West  had  sailed  for 
Charleston  with  two  hundred  and  fifty  troops  on  board,  and  that  she 
ought  to  reach  the  city  on  that  day.  The  message  did  not  reach 
Charleston  until  twenty  minutes  after  five  in  the  evening.  It  was 
none  too  early,  for  by  daylight  the  next  morning  the  ship  was  steam 
ing  up  the  channel—and  of  the  rest  the  reader  is  already  informed. 
Of  course,  Mr.  Thompson  instantly  resigned  his  office. 

"  On  the  llth  of  January  Mr.  Thomas  resigned  from  the  Treasury 
Department,  because  he  disagreed  with  the  President  and  Cabinet 
about  affairs  at  Charleston,  and  especially  about '  the  authority  under 
existing  laws  to  enforce  the  collection  of  customs  at  the  port  of 
Charleston.'  General  Dix  took  his  place,  and  henceforth  the  Cabinet 
was  a  unit.  Perhaps  the  spirit  by  which  they  were  animated  as  a 
body  was  never  more  candidly  expressed  than  in  the  following  letter  : 

"  *  STATE  DEPARTMENT,  January  17, 1861. 

"  '  MY  DEAB  SIR  :  I  am  much  obliged  by  your  letter.  It  undoubt 
edly  would  be  a  great  party  move  as  between  Democrats  and  Black 
Republicans  to  let  the  latter  have  a  civil  war  of  their  own  making. 
It  would  also  be  poetical  as  well  as  political  justice  to  let  them  reap 
the  whirlwind  which  must  grow  out  of  the  storm  they  sowed.  But 
can  we  avoid  doing  something  ?  Is  not  the  business  altogether 
beyond  party  considerations  ?  For  South  Carolina  compels  us  to 
choose  between  the  destruction  of  the  Government  and  some  kind  of 
defense.  They  have  smitten  us  on  one  cheek — shall  we  turn  the 
other  ?  They  have  taken  our  coat — shall  we  give  them  our  cloak 
also  ?  The  gospel  commands  this  in  private  affairs,  but  the  rule 


22  BIOGRAPHICAL  SKETCH. 

is  not  understood,  I  think,  as  applying  to  public  property  held  by  a 
government  in  trust  for  its  people.  I  am  not  in  favor  of  war,  but  I 
can  not  resist  the  conviction  that  when  war  is  made  against  us  a  mod 
erate  self-defense  is  righteous  and  proper.  Coercion — well,  I  would 
not  care  about  coercing  South  Carolina  if  she  would  agree  not  to  coerce 
us.  But  she  kicks,  cuffs,  abuses,  spits  upon  us,  commits  all  kinds  of 
outrages  against  our  rights,  and  then  cries  out  that  she  is  coerced  if 
we  propose  to  hide  our  diminished  heads  under  a  shelter  which  may 
protect  us  a  little  better  for  the  future. 

"  '  I  agree  with  you  that  we  ought  not  to  make  a  civil  war.  Do 
you  disagree  with  me  in  the  opinion  that  we  are  bound  to  defend  our 
selves  from  an  unjust  and  illegal  attack  ?  Whatever  your  answer  may 
be,  it  can  not  prevent  me  from  being 

"  '  Your  friend,          J.  S.  BLACK. 

"  '  Hon.  A.  V.  PARSONS.' 

"  It  is  safe  to  say  that  no  one  in  high  position  during  these  times 
has  received  more  praise  or  deserved  it  less  than  General  Scott. 
Before  the  election  of  Lincoln,  before  a  State  had  seceded,  before  it 
was  certain  that  any  State  would  secede,  he  laid  before  the  Secretary 
of  War  a  paper  which  he  called  his  'views.'  It  was  not  inappro 
priately  named,  for  he  presented  little  else  but  dissolving  views  of  the 
great  republic  rent  into  '  fragments,'  of  which  he  volunteered  to 
trace  the  proper  boundaries  and  locate  the  capitals.  He  quoted 
Paley's  '  Moral  and  Political  Philosophy '  to  show  that  a  nation  might 
use  force  to  preserve  the  continuity  of  its  territory ;  but  for  a  seces 
sion  which  made  no  gap  in  the  Union,  which  left  the  continuity 
unbroken,  and  merely  carried  away  a  dozen  or  so  of  neighboring 
States,  he  could  think  of  no  remedy  whatever.  Thus,  if  South  Caro 
lina  seceded,  while  North  Carolina  and  Georgia  remained,  South  Caro 
lina  might  lawfully  be  coerced ;  but  if  all  three  went  out  together, 
there  was  nothing  to  be  done  but  to  bless  them,  unless,  perhaps,  to 
give  them  a  little  considerate  advice  about  the  selection  of  a  capital ! 

"  '  It  will  be  seen,'  said  he,  '  that  the  ' ( views  "  only  apply  to  a  case 
of  secession  that  makes  a  gap  in  the  present  Union.'  The  falling  off 
(say)  of  Texas,  or  of  all  the  Atlantic  States  from  the  Potomac  south, 
was  not  within  the  scope  of  General  Scott's  provisional  remedies. 
'The  foregoing  views,'  he  explained,  'eschew  the  idea  of  invading 
a  seceding  State.'  He  dreaded  'the  laceration  and  despotism  of  the 
sword,'  and  considered  the  reduction  of  the  Union  to  'fragments'  a 
smaller  evil.  Mr.  Buchanan  thought  this  part  of  the  document  '  out 
of  time  and  out  of  place ' — a  very  mild  judgment.  It  might  have 


BIOGRAPHICAL  SKETCH.  23 

been  penned  at  the  headquarters  of  the  South  Carolina  militia,  and 
read  with  applause  in  a  secession  convention.  But  after  mentioning 
what  his  party  feelings  were  like,  and  what  t  ticket '  had  his  sympa 
thies,  the  general  came  to  the  military  point  in  this  dreary  disserta 
tion.  It  took  only  a  short  paragraph  to  state  it,  and  consisted  of  the 
naked  advice  to  garrison  nine  forts  in  the  South,  so  as  to  make  any 
attempt  to  take  them  ridiculous.  There  he  broke  off,  omitting  en 
tirely  to  designate  any  force  available  for  such  a  purpose.  The  next 
day,  however,  he  supplied  the  information.  '  There  were,'  he  said, 
'in  all  five  companies  only  within  reach' — not  enough  to  make  a 
single  one  of  the  forts  impregnable.  And  to  this  statement  he  gave 
the  imposing  title  of  *  Supplemental  Views.' 

"  The  general  repeated  his  advice  on  the  15th  of  December,  and 
on  the  28th  of  January  published  his  '  views '  to  the  world,  South 
Carolina  and  the  cotton  States  included.  What  aid  and  comfort  they 
afforded  to  the  latter  can  only  be  conjectured  from  the  character  of 
the  document  itself.  But,  determined  not  to  be  misunderstood,  he 
saluted  the  new  Administration  in  the  person  of  Mr.  Seward,  on  the 
3d  of  March,  with  a  letter  in  which  he  again  aired  his  political  opin 
ions,  and,  after  deprecating  the  enormous  waste  and  numberless  hor 
rors  of  civil  war,  which  could  only  end  in  the  conquest  of  devastated 
and  worthless  '  provinces,'  he  put  the  sum  of  his  '  views,'  about  which 
he  had  made  such  a  pother,  into  a  single  sentence  :  '  Wayward  sisters, 
depart  in  peace.' 

"  When  the  Star  of  the  West  was  fired  upon,  Major  Anderson  made 
no  reply  from  the  guns  of  Suinter,  as  he  should  have  done,  when  he 
saw  his  own  supply-ship,  which  he  knew  and  recognized,  suffering  in 
the  midst  of  an  overwhelming  cannonade.  But  he  sent  to  the  Gov 
ernor  to  demand  a  disavowal  of  the  act,  and  in  case  of  a  failure  to 
get  it,  said  he  would  consider  the  act  the  beginning  of  hostilities  and 
fire  upon  any  vessel  that  came  within  reach  of  his  guns.  But  his 
zeal  departed  with  his  messenger,  and  when  the  Governor  transmitted, 
instead  of  an  apology,  a  demand  for  the  surrender  of  Sumter  itself, 
he  calmly  referred  the  proposition  to  Washington,  and  made  himself 
happy  with  a  truce.  The  major  might  certainly  have  done  better, 
for  at  the  moment  he  considered  his  position  impregnable,  boasting  of 
his  power  to  command  the  harbor  and  defeat  '  any  force  that  might 
be  brought  against  him.' 

"Colonel  Hayne,  the  Governor's  envoy,  and  Lieutenant  Hall  from 


24:  BIOGRAPHICAL  SKETCH. 

the  fort,  arrived  in  Washington  on  the  13th  of  January.  The  latter 
represented  Major  Anderson  as  perfectly  secure,  while  the  former 
bore  a  demand  for  the  surrender  of  his  position.  But  nine  of  the 
Senators  from  the  cotton  States  prevailed  on  Colonel  Hayne  not  to 
deliver  his  note  until  they  had  time  to  ascertain  whether  Mr.  Buchanan 
would  agree  not  to  re-enforce  the  fort,  provided  Governor  Pickens 
would  also  let  it  alone.  On  the  19th  the  correspondence  between 
them  was  laid  before  the  President,  who  employed  the  pen  of  Mr. 
Holt  to  say,  in  reply,  that  '  at  the  present  moment  it  is  not  deemed 
necessary  to  re-enforce  Major  Anderson,  because  he  makes  no  such 
request,  and  feels  quite  secure  in  his  position.  Should  his  safety, 
however,  require  re-enforcements,  every  effort  will  be  made  to  supply 
them.'  On  the  30th  Colonel  Hayne  presented  the  Governor's  de 
mand,  and  again  Mr.  Holt  replied  in  a  letter  of  overwhelming  force. 
The  whole  subject  was  beyond  controversy.  The  President  had  no 
notion  of  a  surrender,  and  would  not  entertain  the  thought  for  a 
moment. 

"  In  pursuance  of  this  policy — now  thoroughly  established  and  well 
understood — another  expedition  for  the  relief  of  Sumter  was  prepared 
at  New  York.  It  never  sailed,  for  two  reasons,  either  one  of  which 
was  more  than  sufficient :  first,  because  it  was  thought  Anderson  did 
not  need  or  want  it ;  and,  second,  because  South  Carolina  as  well  as 
the  President  was  disposed  to  respect  the  appeal  of  Virginia,  to  avoid 
hostilities  until  the  Peace  Congress  should  meet  and  act. " 

On  the  6th  of  February,  1861,  the  President  had  nominated  Judge 
Black  to  the  Senate  for  Associate  Justice  of  the  Supreme  Court  of  the 
United  States,  to  fill  the  vacancy  occasioned  by  the  death  of  Mr.  Jus 
tice  Daniels ;  but,  owing  to  the  previous  withdrawals  of  Southern 
Senators,  and  certain  opposition  of  Senators  remaining,  very  easily  to 
be  accounted  for,  the  nomination  was  neither  confirmed  nor  rejected, 
but  suffered  to  fall  with  the  expiration  of  the  session. 

Judge  Black  left  office  with  "clean  hands  and  empty."  At  the 
age  of  fifty-one  he  returned  to  the  bar  to  begin  life  anew,  and,  in  so 
far  as  worldly  goods  were  concerned,  to  begin  at  the  bottom.  He 
now  removed  from  Somerset  County  to  York,  where  he  shortly  after 
ward  bought  the  lands  and  subsequently  built  the  house  so  well 
known  under  the  name  of  Brockie.  In  1861  he  was  appointed  Re 
porter  to  the  Supreme  Court  of  the  United  States,  and  published  the 


BIOGRAPHICAL  SKETCH.  25 

volumes,  first  and  second  Black,  when  he  was  forced  to  resign  to  meet 
the  requirements  of  a  very  large  and  very  desirable  practice.  While 
Attorney-General  he  had  successfully  pressed  upon  the  court  a  num 
ber  of  rules,  which,  with  scarcely  an  exception,  governed  the  whole 
current  of  decisions  in  the  California  cases ;  and  this  circumstance 
it  was  which  gave  him  the  lead  and  the  choice  in  that  whole  class 
of  business,  and  for  many  years  few  or  none  of  these  cases  were 
heard  in  which  he  did  not  appear  either  as  private  counsel' for  an 
honest  claim,  or  as  special  counsel  of  the  United  States,  or  of  the 
settlers,  against  a  dishonest  one.  To  some  men  this  great  practice 
would  have  yielded  a  large  fortune ;  it  did,  in  truth,  bring  him  an 
irregular  income  out  of  all  proportion  to  his  wants  or  his  original 
expectations.  But  he  had  no  taste  for  the  accumulation  of  money  ; 
and,  when  he  had  secured  a  very  modest  competence,  his  ambition  in 
that  particular  was  perfectly  satisfied.  The  rest  of  the  golden  shower 
was  neglected  ;  he  would  scarcely  stoop  to  pick  it  up,  or,  when  he  did, 
he  gave  it  away,  or  let  it  run  through  his  hands  like  water.  He  never 
kept  a  book  or  an  account  of  any  description ;  never  invested  a  dollar 
on  speculation  ;  and,  except  the  interest  product  of  his  comparatively 
small  savings,  he  never  received  any  money  whatever  but  in  fair  pay 
ment  of  plain,  downright  professional  labor.  He  lost  large  sums  by 
indulgence  of  clients  who  were  neither  entitled  to  his  charity  nor  in 
need  of  it,  and  he  was  swindled  out  of  much  more  by  clients  and 
others  who  dishonestly  availed  themselves  of  his  known  simplicity  and 
easiness  in  matters  of  this  kind. 

Judge  Black  argued  in  the  Supreme  Court  nearly  all  the  most 
important  of  the  California  land  cases,  and  in  some  of  them  he 
received  fees  which  seemed  large,  but  were,  in  fact,  not  large  when 
considered  with  reference  to  the  labor,  responsibility,  and  magnitude 
of  the  interests  involved.  But  his  practice  gradually  became  general, 
and  included  the  greater  number  of  the  so-called  political  cases  aris 
ing  under  the  various  military  orders  of  the  Government  which 
exceeded  constitutional  authority  and  struck  at  the  personal  liberty 
of  the  individual  citizen,  as  well  as  those  arising  under  the  reconstruc 
tion  laws,  which  invaded  the  rights  of  the  States  and  leveled  the  bul 
warks  of  self-government.  His  work  during  this  period  in  defense 
of  the  constitutional  rights  of  the  people,  and  of  the  institutions 
designed  for  their  protection,  was,  in  a  public  sense,  the  most  impor 
tant  of  his  life,  not  excepting  his  bold  stand  for  the  Union  during  the 


26  BIOGRAPHICAL  SKETCH. 

closing  months  of  Mr.  Buchanan's  administration.*    In  most  of  these 
now  historical  cases  he  gave  his  services  without  compensation ;  in- 

*  Who,  in  our  day,  was  a  greater  expounder  and  defender  of  our  laws  than  Jeremiah 
S.  Black  ?  Who,  of  all  the  men  of  this  generation,  has  offered  upon  the  altars  of  legal 
liberty  the  devotion  of  a  brighter  genius,  the  enthusiasm  of  a  more  ardent  soul,  than 
Jeremiah  S.  Black  ?  ...  He  was,  likewise,  a  man  of  letters,  deeply  versed  in  the  litera 
ture  of  this  and  the  past  ages,  and  acquainted,  to  use  the  language  of  a  distinguished 
Englishman,  with  the  best  thoughts  and  words  of  mankind.  It  was  also  his  good  fortune 
that,  owing  no  doubt  to  this  thorough  training  in  literature,  he  possessed  a  wonderful 
force  and  lucidity  of  style.  His  exposition  of  most  complicated  questions  of  law,  his 
most  recondite  ideas  on  all  subjects,  were  made  clear  and  simple  to  the  slowest  minds. 

His  invective  has  had  no  parallel,  in  my  judgment,  in  American  forensic  literature. 
In  this  field  his  command  of  the  English  language  has  not  been  excelled  on  either  side  of 
the  sea.  He  was  as  much  superior  to  Junius  as  an  equal  skill  in  the  use  of  language, 
combined  with  a  vastly  superior  legal  knowledge,  could  make  him,  to  say  nothing  of  the 
superior  manhood  which  made  him  sign  his  name  to  even  the  bitterest  of  his  philippics. — 
Senator  VANCE,  of  North  Carolina. 

Some  ten  years  after  hearing  him  the  first  time,  I  heard  him  for  the  second  time  in 
the  Blyew  case,  from  Kentucky,  reported  in  13th  Wallace.  That  effort  was  the  finest 
combination  of  law,  logic,  rhetoric,  and  eloquence  I  have  ever  listened  to.  When  it  was 
finished,  a  very  able  attorney  of  the  court,  sitting  near  by,  asked  me  what  I  thought  of 
it,  to  which  I  replied  that  I  had  come  all  the  way  from  my  home  to  look  after  a  little 
business  here,  at  considerable  sacrifice,  but,  having  heard  this  argument,  I  was  more  than 
compensated.  ...  His  resources  were  wonderful,  almost  boundless,  his  reading  vast,  his 
memory  prodigious,  his  versatility  extraordinary.  Cicero,  in  one  place  quoting  from 
Demosthenes,  that  action  is  the  chief  excellency  in  speaking,  interprets  action  to  mean 
delivery ;  in  another  place  he  refers  to  it  as  enunciation ;  but  Quintilian,  in  quoting  the 
same,  makes  it  mean  pronunciation,  looks,  voice,  gesture,  the  whole  movement  of  the 
man  speaking.  In  either  and  all  of  the  interpretations  Mr.  Black  had  this  first,  this 
second,  this  third  excellency.  He  not  only  became  his  client,  but  his  client's  cause ;  he 
was  wrapped  up  and  lost  in  it ;  he  moved  and  acted  in  it.  So  great  were  his  earnestness 
and  power  of  assertion,  I  have  fancied  I  could  see  the  convictions  of  judges  giving  away 
reluctantly  before  him  and  surrendering  to  him  as  he  spoke.  ...  A  rhetorician  without 
a  superior — the  best  phrase-maker  I  ever  heard — he  used  the  English  language  after  the 
style  of  Shakespeare ;  and  for  clear  invective  he  equaled  anything  contained  in  the  justly 
famous  article  of  Macaulay  on  Barere ;  a  logician,  when  he  stated  his  case,  it  was  more 
than  half  argued ;  a  statesman,  molded  in  the  form  and  style  and  educated  in  the  school 
of  Mr.  Jefferson,  he  was  essentially  democratic. — Senator  GARLAND,  of  Arkansas. 

If  I  comprehended  Judge  Black,  and  I  think  we  agreed  in  this,  the  principium  of  his 
political  and  juridical  thought  was  the  divinely  vested  liberty  of  the  man.  Government 
was  ordained  of  God  for  man.  Man  was  not  made  for  the  government.  To  secure  this 
right  is  the  only  legitimate  function  of  government.  Every  government  which  denies  or 
violates  this  right  perverts  its  power,  and  is  a  usurpation.  To  the  rude  Latin  of  Magna 
Charta,  to  the  foundation  principles  of  the  Norman-Saxon  constitution  of  our  fatherland, 


BIOGRAPHICAL  SKETCH.  27 

deed,  some  of  the  most  momentous  causes  ever  heard  in  the  Supreme 
Court — notably  those  of  Milligan  and  McCardle — were  prepared  by 
him  at  vast  expense  of  time  and  labor,  and  argued  with  unrivaled 
power,  without  fees  or  the  hope  of  fees.  His  professional  ethics  were 
grounded  upon  doctrines  seldom  recalled  in  this  sordid  age,  wherein 
the  noble  science  of  the  law  is  so  frequently  and  so  openly  prostituted 
to  Mammon.  He  gave  his  services  freely  whenever  the  rights  of  the 
public  or  the  liberties  of  men  were  in  jeopardy,  feeling  that  he  owed 
the  protection  of  his  professional  skill  not  only  to  organized  society, 
but  to  every  individual  in  need  of  it,  and  especially  to  those  who  were 
most  in  need  of  it  and  least  able  to  pay  for  it. 

Judge  Black  was  counsel  for  President  Johnson  in  his  trial  by  the 
Senate  on  articles  of  impeachment ;  but  he  left  the  case  after  the 
President's  answer  had  been  filed,  for  reasons  very  clearly  stated  in  a 
letter  to  his  distinguished  client.  He  was  counsel  for  Secretary  of 
"War  Belknap  upon  his  trial  before  the  Senate  for  corruption  in  office, 
and  defended  him  on  the  ground  that  he  was  no  worse  than  his 
political  associates,  and  ought  not  to  be  made  the  scapegoat  to 
carry  the  sins  of  the  whole  off  into  the  wilderness.  He  was  also  of 
counsel  for  President-elect  Tilden  before  the  Electoral  Commission 
of  1877,  where  he  denounced  the  fraud  then  about  to  be  consum- 

to  that  bundle  of  institutional  liberties  which  our  fathers  bound  up  in  the  venerable  Con 
stitution  of  1789,  Judge  Black  ever  appealed,  with  a  magnetic  eloquence  which  thrilled 
the  hearts  of  English-speaking  men  everywhere,  to  protect  the  liberty  of  the  man  from 
lawless  authority,  and  to  rescue  him  from  the  mailed  hand  of  military  despotism.  His 
argument  in  Milligan's  case  stands  as  an  enduring  monument  of  his  genius  and  his 
courage,  in  making  the  habeas  corpus  an  impenetrable  shield  against  all  the  weapons  of 
civil  and  military  power. 

But  he  found  it  needful  to  these  personal  rights  that  the  local  autonomy  of  each  State 
should  be  secured  from  the  centralizing  tendencies  of  the  Federal  Government. 

Jealousy  of  all  power,  political  and  corporate,  which  threatened  to  abridge  the  free 
dom  of  the  man,  was  the  motive  force  in  Judge  Black's  life  as  a  jurist  and  statesman. 
To  protect  the  man  from  the  ill-used  or  ill-gotten  power  of  government  and  corporations 
and  associations,  to  protect  the  States  against  Federal  encroachment,  these  were  the 
cardinal  principles  which  guided  his  political  and  judicial  life. 

In  the  consistent  maintenance  of  these  cherished  convictions  Judge  Black  was  fearless 
and  aggressive.  His  trenchant  pen,  his  burning  eloquence,  his  compact  logic,  lighted  by 
his  wit  and  humor,  sparkling  to  delight  his  friends,  and  blazing  to  terrify  his  foes,  his 
keen  irony,  his  caustic  sarcasm,  his  scorching  satire,  and  his  fierce  invective,  made  him 
foremost  among  the  writers  and  advocates  of  his  day.— Hon.  J.  RANDOLPH  TUCKER, 
of  Virginia. 


28  BIOGRAPHICAL  SKETCH. 

mated,  in  words  which  have  since  passed  into  the  common  speech  of 
men. 

The  convention  of  1872,  to  reform  the  Constitution  of  Pennsyl 
vania,  was  a  body  remarkable  not  less  for  the  high  character  of  its 
membership  than  for  the  spirit  and  scope  of  its  labors.  Its  roll  com 
prised  all  the  most  distinguished  names  in  the  recent  history  of  the 
Commonwealth,  and  it  was,  in  every  respect,  an  assemblage  worthy 
of  the  illustrious  Meredith,  its  first  president.  It  is  too  early  to  esti 
mate  correctly  the  whole  importance  of  its  work,  which  was  approved 
by  the  people  without  distinction  of  party,  and  ratified  by  an  unpre 
cedented  majority.  But  its  value  seems,  by  ten  years  of  experience, 
to  have  been  placed  beyond  dispute,  though  the  real  magnitude  and 
character  of  the  reforms  effected  by  it  are  but  now  coming  to  be 
clearly  understood.  Judge  Black  was  a  delegate-at-large,  and  for 
nearly  a  year  was  one  of  the  most  considerable  figures  in  the  conven 
tion,  and  certainly  one  of  the  most  interesting,  by  reason  of  the 
radical  nature  of  some  of  his  propositions,  and  the  curious  reasoning, 
quaint  eloquence,  and  singular  wit,  with  which  he  supported  them. 
He  was  especially  earnest  in  behalf  of  the  strongest  restraints  upon 
corporations,  and  of  an  "iron-clad  oath"  to  be  taken  by  members  of 
the  General  Assembly  at  the  expiration  of  their  terms,  swearing  that 
they  had,  in  fact,  behaved  themselves  well  and  truly  in  their  offices 
as  they  had  sworn  to  do  when  they  assumed  them. 

The  convention  assembled  on  the  12th  of  November,  1872,  and 
adjourned  sine  die  on  the  27th  of  December,  1873.  On  the  2d  of 
October,  1873,  Judge  Black  resigned.  He  had  served  during  the 
whole  period  without  pay.  The  Legislature  appropriated  one  thou 
sand  dollars  to  each  member.  It  subsequently  repealed  the  act,  and 
authorized  the  convention  to  fix  the  compensation  of  its  own  mem 
bers,  which  it  did,  making  the  sum  fifteen  hundred  dollars.  But 
Judge  Black  held  that  the  Legislature  only  could  make  a  lawful 
appropriation  of  public  money,  and  the  members  were  entitled  to 
nothing  under  the  appropriation  made  by  themselves.  It  was  a  nice 
scruple,  which  does  not  appear  to  have  been  shared  by  any  one  else  in 
the  convention  ;  and  every  other  member  received  the  increased  salary 
without  question.  In  presenting  his  resignation,  Judge  Woodward 
said  :  "  It  is  probably  known  to  every  gentleman  on  this  floor  that 
Judge  Black  conceived  that  the  Legislature  had  no  right  to  turn  over 
a  sum  of  money  to  be  disposed  of  by  this  convention  for  the  salary  of 


BIOGRAPHICAL  SKETCH.  29 

members.  Acting  upon  his  own  personal  conviction,  he  has  declined 
to  receive  any  compensation  whatever,  and  has  not  received  a  dollar 
of  compensation  for  his  services  in  this  body  ;  nor  does  he  propose  to 
do  so  unless  the  Legislature  shall  hereafter  make  an  appropriation  in 
the  form  of  the  Constitution,  which  appropriation  he  does  not  expect 
the  Legislature  to  make."  The  convention  was  very  reluctant  to 
accept  Judge  Black's  resignation,  notwithstanding  Judge  Wood 
ward's  assurance  that  it  was  impossible  he  should  ever  occupy  the 
seat  again.  The  subject  was  postponed  from  time  to  time ;  a  com 
mittee  was  appointed  to  wait  upon  Judge  Black  and  request  him  to 
return ;  but  he  could  not,  for  many  reasons,  alter  his  determination, 
and  on  the  13th  of  October,  eleven  days  after  its  date,  the  resignation 
was  accepted.  Judge  Black  had  lost  many  thousands  of  dollars  in  his 
practice  by  this  year's  public  service,  but  he  had  made  the  sacrifice 
cheerfully,  in  the  hope  of  accomplishing  for  the  people  of  Pennsyl 
vania  sundry  constitutional  reforms  which  he  deemed  essential  to 
their  welfare.* 

During  the  later  years  of  his  life  Judge  Black  labored  almost  in 
cessantly,  and  in  a  great  variety  of  publications,  some  of  them  exhib 
iting  his  highest  powers  of  legal  statement,  to  bring  the  carrying 
companies  of  the  country  under  the  control  of  the  State  and  of  law. 
It  was  a  task  purely  gratuitous,  undertaken  solely  from  an  irrepres 
sible  love  of  justice  and  an  uncompromising  sense  of  right.  He  con 
sidered  Article  XVII  of  the  amended  Constitution  of  Pennsylvania 
one  of  the  most  wholesome  it  contained,  and  he  determined  to  do 
his  share  toward  holding  the  evading  railroads  to  it,  and  "to  hold 
them  hard."  He  had  no  ambition ;  that,  even  had  there  ever  been 
a  day  when  he  could  have  served  it  in  this  way,  was  long  since  spent. 
Freely  and  frequently  as  he  was  maligned  in  the  course  of  his  benefi 
cent  work  by  the  paid  legionaries  of  those  who  profited  by  the  enor 
mous  abuses  of  irresponsible  railway  management,  he  knew  that  time 
would  show  the  soundness  of  his  principles  and  the  disinterestedness 
of  his  motives  as  well.  He  had  no  purpose  whatever  to  serve  but  the 
protection  of  the  people  against  corporate  aggressions,  from  which 

*  Judge  Black  was  appointed  one  of  three  arbitrators  by  the  States  of  Maryland  and 
Virginia  to  settle  the  disputed  boundary  between  those  States.  The  original  arbitrators 
were  Judge  Black ;  ex-Governor  Graham,  of  North  Carolina ;  and  ex- Governor  Jenkins,  of 
Georgia.  Governor  Graham  died  before  the  hearing ;  and  Senator  Beck,  of  Kentucky, 
was  substituted.  The  final  award  was  made  in  January,  1877. 


30  BIOGRAPHICAL  SKETCH. 

they  had  suffered  grievously  in  the  past,  and  were  likely  to  suffer  more 
grievously  in  the  future,  unless  the  constitutional  remedy  of  "  appro 
priate  legislation"  should  be  promptly,  honestly,  and  fearlessly  ap 
plied.  His  last  public  appearance  was  made  in  support  of  this  great 
cause  before  the  Judiciary  Committee  of  the  Senate  of  Pennsylvania. 

Of  his  remarkable  gifts  as  a  "talker"— of  the  rare  conversations, 
more  interesting  than  the  more  deliberate  produce  of  his  pen,  and  fully 
as  instructive — no  record,  for  the  most  part,  unfortunately  remains, 
and  none,  at  all  events,  could  be  given  here.  A  book  of  his  table- 
talk  would  be  a  contribution  to  that  kind  of  literature  inferior  in 
interest  and  value  to  none  of  the  class.  A  second  Bos  well  might  have 
done  as  much  for  his  fame  as  the  first  one  did  for  Dr.  Johnson's.  Cer 
tain  it  is,  at  any  rate,  that  neither  the  full  extent  of  his  mental  pow 
ers,  nor  the  strength,  sweetness,  and  simplicity  of  his  general  char 
acter,  were  known  to  those  who  had  not  seen  him  in  private,  and 
witnessed  the  play  as  well  as  the  work  of  that  great  understanding.* 

*  No  more  unaffected  man  nor  delightful  companion  could  be  imagined.  The  charm 
of  intercourse  with  such  a  man  was  one  of  life's  great  pleasures,  to  be  appreciated  only 
by  those  who  had  enjoyed  it.  And  now  it  is  gone,  save  only  as  memory  may  be  able  to 
preserve  it. 

Proofs  of  his  great  powers  in  judgment,  controversy,  and  literary  performance  remain 
to  us  in  his  writings ;  but,  unless  it  be  to  those  who  knew  him  personally,  it  is  all  in  vain 
to  attempt  to  describe  the  subtile  charm  of  the  gifts,  the  attractions,  the  personal  virtue 
that  built  up  the  man  we  loved  so  well,  honored  and  admired  so  highly,  and  so  deeply 
mourn. — Senator  BAYARD,  of  Delaware. 

In  social  intercourse  he  was  genial,  fascinating,  and  instructive.  Who  can  ever  for 
get  the  charms  of  his  conversation,  the  strength  and  devotion  of  his  attachments,  or  the 
fidelity  and  tenderness  of  his  great  heart  to  his  family  and  friends  ? — lion.  J.  RANDOLPH 
TUCKER. 

We  shall  ever  remember  Judge  Black  as  a  most  fluent  talker,  entitled  to  a  high  place 
among  "The  Great ,  Conversers " — and  in  Professor  Mathew's  charming  little  book  of 
that  title,  in  any  future  edition,  he  must  appear  to  some  extent,  or  there  will  be  a  mate 
rial  omission.  In  a  book  of  American  ana,  his  wise  and  witty  sayings  and  eloquent 
observations,  flung  out  on  the  spur  in  his  animated  talks,  would,  to  the  delight  of  the 
readers,  fill  a  good  many  pages.  He  needed  but  a  Boswell  to  make  him  in  that  respect 
appear  equal  to  Johnson.  Talk  was  his  kind  of  dissipation — his  intoxicant — the  means 
for  exhilaration,  like  wine  to  the  more  sluggish. — THOMAS  J.  KEENAN,  Esq.,  Pittsburg. 

That  he  belonged  to  a  giant  race  of  lawyers,  now  almost  if  not  quite  extinct ;  that 
many  of  his  judgments  from  the  bench  equal  in  directness,  force,  and  elegance  of  style 
the  best  judicial  writing  in  the  literature  of  our  jurisprudence ;  that  he  was  the  greatest 
advocate  at  the  bar  this  country  has  had  seen  since  Pinkney ;  that  his  diction  was  richer 
than  Macaulay's  and  more  brilliant  than  that  of  Junius ;  that  his  speech  and  thought  often 


BIOGRAPHICAL  SKETCH.  31 

It  will  be  unnecessary  to  inform  the  reader  of  the  following  pages 
that  Jeremiah  S.  Black  was  a  devout  Christian.  Fearing  nothing 
else  in  this  world,  he  went  always  and  humbly  in  the  fear  of  God. 
His  whole  mind  and  being  were  saturated  with  the  morality  of  the 
Testament  of  Christ,  which,  he  said,  was  "  filled  with  all  forms  of 
moral  beauty,  and  radiant  with  miracles  of  light."  He  was  baptized 
in  1843  by  Alexander  Campbell,  whose  eulogy  he  pronounced  upon 
the  unveiling  of  his  statue  at  Bethany,  West  Virginia. 

Judge  Black  expired  at  Brockie  on  the  19th  of  August,  1883,  at 
about  two  o'clock  in  the  morning.  The  windows  of  the  chamber  in 
which  he  lay  during  his  last  illness  afforded  one  of  the  fairest  prospects 
on  this  earth,  and  one  which  he  loved  beyond. all  others.  In  no  heart 
that  ever  beat  was  the  sentiment  of  home  more  predominant  than  in 
his ;  and  not  Brockie  only,  with  its  inmates,  but  the  whole  scene 
around  it — the  rich  landscape,  the  fertile  farms,  the  thrifty,  inde 
pendent  people,  with  whom  he  thoroughly  enjoyed  the  sense  of  good 
neighborhood — were  very  dear  to  him.  Unable  to  rise  and  see  for 
himself,  he  asked  his  wife  to  go  to  the  window  and  tell  him  how  it 
looked,  especially  if  the  fields  were  green ;  and  he  listened  to  her 
report  with  simple  and  touching  eagerness. 

He  knew  from  the  first  that  he  was  fatally  stricken,  and  no  assur 
ance  to  the  contrary  produced  the  slightest  impression.  But  he  said 
very  little  on  the  subject.  In  his  broad  view  of  the  economy  of  na 
ture  and  of  God,  dissolution  of  this  mortal  life  was  an  event  not  to  be 
dreaded  but  to  be  soberly  welcomed  by  one  who  had  no  reason  to  fear 
the  face  of  his  Judge.  To  one  of  his  family  he  said,  "  I  would  not 
have  you  think  for  a  moment  that  I  am  afraid  to  die. "  And  to  an- 

recall  the  sagacity  of  Montaigne  and  the  humor  of  Rabelais ;  that  he  was  a  patriot  min 
ister  of  state  who  stood  by  his  country,  when  others  faltered,  in  the  darkest  hour  of  its 
history ;  that  he  would  have  gone  to  the  block  as  cheerfully  as  any  man  that  ever  lived 
for  any  opinion  he  held  dear — these  are  well-known  and  now,  I  believe,  generally  con 
ceded  facts  in  the  life  and  character  of  Judge  Black ;  but  all  do  not  know  so  well,  for 
those  who  came  closely  in  contact  with  him  alone  could  know,  how  ingenuous  he  was  in 
all  his  personal  relations,  how  unselfish  in  his  kindness,  how  cheerful  and  cordial  in  his 
intercourse  with  friends,  how  genial,  gentle,  and  unpretentious  in  his  manner,  how  origi 
nal,  simple,  and  unaffected  in  all  his  ways  and  in  all  his  words.  His  nature  was  not 
spoiled  by  his  great  reputation.  The  sweet  sensibilities  of  his  heart  were  not  touched 
by  the  corroding  or  the  chilling  influences  of  public  life.  His  great  manhood  stood  by 
him  to  the  last,  and  he  died,  as  he  had  lived,  a  simple,  direct,  and  earnest  man. — J.  HUB- 
LEY  ASHTON,  Esq.,  Washington,  D.  C. 


32  BIOGRAPHICAL  SKETCH. 

other  :  "  My  business  on  the  other  side  is  well  settled — on  this  it  is 
still  somewhat  at  loose  ends  "  ;  and  then  proceeded  in  ordinary  voice 
and  apparently  in  ordinary  spirits  to  give  certain  instructions  about 
his  worldly  affairs.  These  expressions  were  each  of  them  made  in  the 
hearing  of  but  one  person.  There  were  no  scenes — none  of  the  usual 
death-bed  incidents.  His  visible  descent  to  the  grave,  except  for  the 
great  bodily  anguish  he  endured,  was  perfectly  serene,  and  he  lay 
down  to  the  long  rest  he  had  so  well  earned  with  all  the  majesty  of 
his  natural  character  about  him. 

In  all  the  intervals  of  intense  suffering  throughout  that  memora 
ble  week,  he  indulged  the  usual  flow  of  clear,  delightful  conversation, 
lighted  up  with  his  usual  wit,  rich  with  his  customary  humor,  and 
abounding  in  amusing  anecdotes  and  interesting  reminiscences.  No 
one  who  had  seen  him,  without  knowledge  of  his  actual  condition, 
could  have  imagined  that  all  this  while  he  was  consciously  dying,  and 
that  the  time  remaining  to  him  had  been  measured  in  his  own  mind 
by  hours,  and  they  rapidly  diminishing  ! 

Realizing  the  approach  of  the  parting  moment — the  parting  of 
life  and  of  ties  more  dear — he  uttered  that  prayer,  unsurpassed  for  its 
simplicity  and  tenderness  in  the  literature  of  human  devotion :  "0 
Thou  beloved  and  most  merciful  Father,  from  whom  I  had  my  being 
and  in  whom  I  ever  trusted,  grant,  if  it  be  Thy  will,  that  I  no  longer 
suffer  this  agony,  and  that  I  be  speedily  called  home  to  Thee.  And, 
0  God,  bless  and  comfort  this  my  Mary." 

He  died  at  about  ten  minutes  past  two  o'clock  on  the  morning  of 
Sunday  the  19th  of  August.  His  death  was  worthy  of  himself. 

"  Our  children  will  marvel  what  manner  of  men  their  fathers  were 
among  whom  there  could  have  been  a  difference  of  opinion  about  the 
merits  of  such  a  man.  His  fame,  like  a  mighty  river,  will  grow  wider 
and  deeper  as  it  rolls  downward. " 

NOTE. — The  last  book  Judge  Black  had  in  his  hands  was  the  second  volume  of  the 
"  Life  of  James  Buchanan,"  by  Mr.  Curtis,  then  several  months  from  the  press.  He  had 
opened  it  at  the  account  of  Mr.  Buchanan's  death,  and  had  evidently  read  it  with  deep 
interest,  for  the  leaves  were  not  cut  but  rudely  torn  apart  by  running  his  thumb  through 
them.  He  never  saw  that  part  of  the  work  which  concerned  himself.  Those  pages 
were  neither  cut  nor  torn.  Having  read  this  story  of  the  death  of  his  greatly  honored 
friend,  he  walked  out  upon  the  broad  veranda  of  Brockie,  gazed  thoughtfully  at  the 
shadows  of  the  clouds  chasing  each  other  across  the  moonlit  hills — the  last  look  he  ever 
cast  upon  the  world — and  retired  to  the  bed  from  which  he  never  rose. 

It  was  that  day,  his  family  suppose,  and  before  opening  the  Life  of  Mr.  Buchanan, 


BIOGRAPHICAL   SKETCH.  33 

that  he  wrote  the  following  lines,  manifestly  the  beginning  of  a  very  brief  reply  which  he 
intended  to  make  to  the  famous  assault  upon  him  by  Mr.  Jefferson  Davis.  It  was  the  last 
time  he  held  a  pencil  in  his  hand.  The  reader  familiar  with  Judge  Black's  style  will 
detect  a  melancholy  tone  in  this  fragment,  very  unlike  the  opening  passages  in  any  other 
of  his  many  controversial  papers.  It  is  believed  that  one  sheet  was  swept  by  the  wind 
through  the  open  windows  of  his  library  and  lost : 

I  do  not  see  as  clearly  as  some  of  my  friends  the  necessity  of  answering  General 
Davis's  late  article  in  the  Philadelphia  "  Times."  As  a  contribution  to  history,  true  or 
false,  it  amounts  to  nothing ;  as  a  reargument  for  secession,  it  is  the  very  flattest  of  all 
his  numerous  failures ;  as  a  personal  assault  upon  me,  it  is  so  surprisingly  feeble  and 
awkward  that  it  inflicts  no  wound.  But  his  weapon  is  smeared  with  venom,  which,  if  not 
attended  to,  may  fester  in  the  scratch.  By  reason  of  this  last  fact,  and  because  the  char 
acter  and  career  of  Mr.  Davis  are  regarded  with  great  interest  and  admiration  by  a  large 
portion  of  the  country,  I  can  not  treat  him  with  contemptuous  silence. 

My  original  sin  against  him  consisted  in  utterly  rejecting  the  doctrine  that  a  State  had 
a  right  to  secede  and  dismember  the  Union  whenever  its  political  leaders  chose  to  take  a 
huff  at  the  result  of  a  presidential  election,  or  lose  their  temper  by  falsely  anticipating 
some  maladministration  of  Federal  powers.  The  States  have  rights  carefully  reserved  and 
as  sacred  as  the  life,  liberty,  and  property  of  a  private  citizen,  but  to  say  that  among  these 
rights  is  that  of  expelling  from  its  territory  the  officers  of  the  General  Government,  re 
sisting  the  execution  of  its  laws,  and  abolishing  its  Constitution,  is  to  utter  an  absurdity 
too  absolutely  gross  to  be  entertained  by  any  man  who  has  bestowed  one  rational  look 
upon  the  subject.  This  is  a  conclusion  too  simple  to  allow  of  argumentation  either  pro 
or  con.  It  is  not  with  me  a  matter  of  mere  belief.  I  know  it  as  every  man  knows  how 
many  fingers  he  has  to  his  hand  as  soon  as  he  counts  them.  If  my  opinions,  carefully 
formed  and  faithfully  adhered  to,  were  in  conflict  with  his  interests,  wishes,  or  feelings, 
I  can  not  help  it.  Nobody  desired  more  ardently  than  I  did  that  he  should  look  for  peace, 
safety,  and  justice  where  alone  he  could  find  them,  inside  of  the  Union  and  under  the 
shelter  of  the  Constitution.  But,  in  spite  of  all  entreaties,  arguments,  and  demonstrations 
of  the  truth,  he  would  go  out  and  drag  his  people  out  with  him  into  secession.  He  proudly 
put  himself  at  the  head  of  the  movement  to  dismember  the  nation ;  he  wrecked  his  cause, 
brought  hideous  ruin  upon  his  followers,  and  left  himself  without  an  object  in  life  except 
to  throw  the  blame  of  his  disasters  upon  somebody  else. 

* 
"  Hl-weaved  ambition,  how  much  art  thou  shrunk  !  " 

The  Philadelphia  "Press"  of  September  10,  1883,  contained  a  ten-column  article  en 
titled  "  Judge  Black's  Answer."  It  was  published  as  being  substantially  the  reply  which 
he  would  have  made  to  Mr.  Daris  had  he  lived.  It  made  no  pretensions  to  verbal  accu 
racy,  but  was  the  reproduction  from  memory  alone  by  Colonel  Frank  A.  Burr  of  a  conver 
sation  with  Judge  Black  on  the  day  Mr.  Davis's  letter  appeared  in  the  "  Times."  The 
writer  hereof  was  not  present  at  the  conversation,  and  is,  therefore,  unable  to  bear  posi 
tive  testimony  to  the  correctness  of  the  report.  But  the  internal  evidence  was  so  striking 
and  abundant  that  he  has  never  thought  of  questioning  it — nor,  indeed,  has  any  one  else. 
It  was,  on  the  whole,  one  of  the  most  marvelous  feats  of  reporting  ever  accomplished. 
Previous  publications  by  the  same  gentleman  in  the  same  journal  had  thrown  a  broad 
glare  of  light  over  the  events  of  1860-'61,  and  the  last  interview  was  but  the  crowning 
one  of  a  very  brilliant  and  useful  series. 


MISCELLAKEOUS. 


ADDRESS  DELIVERED  BEFORE  THE  AGRICULTURAL 
SOCIETY  OP  SOMERSET  COUNTY,  AT  ITS  ANNUAL 
EXHIBITION,  OCTOBER  6,  1854. 

GENTLEMEN  OF  THE  AGRICULTURAL  SOCIETY  :  Of  course,  I  am 
not  expected  to  give  you  any  instructions  in  the  details  of  practical 
agriculture.  If  I  were  competent  to  such  a  task,  this  is  not  the  occa 
sion  to  execute  it.  An  essay  on  the  breeds  of  cattle,  or  the  genealogy 
of  horses — on  the  process  of  making  butter,  the  composition  of  ma 
nures,  or  the  cultivation  of  particular  crops — would,  at  present,  be 
out  of  place  and  out  of  time.  My  purpose  is  broader,  if  not  better, 
and  more  general,  if  not  more  useful.  The  duty  assigned  to  me  will 
be  done  if  I  lay  before  you  a  few  of  the  facts  and  reasons  which  tend 
to  establish  one  most  important  truth,  namely,  that  the  art  which  you 
profess  is  in  a  condition  which  needs,  and  will  most  amply  repay,  a 
vigorous  effort  to  improve  it. 

When  those  who  belong  to  a  particular  profession  hear  themselves 
addressed  by  one  whose  life  has  been  devoted  to  a  different  pursuit, 
they  take  his  advice  reluctantly,  or  not  at  all.  They  believe  as  far  as 
they  please.  It  is  so  much  easier  to  talk  than  to  do,  that  an  outsider 
can  never  speak  as  one  having  authority.  But  I  do  not  know  why 
you  should  not  take  a  suggestion,  or  listen  to  a  remonstrance,  let  it 
come  from  whom  it  may.  There  is  nothing  at  all  suspicious  in  the 
fact  that  a  merchant  or  mechanic,  a  physician,  minister,  lawyer,  or 
judge,  takes  a  deep  interest  in  your  business.  It  is  their  misfortune 
that  they  do  not  follow  it,  for  most  of  them  would  if  they  could. 
The  taste  for  agricultural  employments  and  rural  scenery  is  almost 
universal.  The  cultivation  of  the  earth  is  the  only  trade  which  God 
ever  commanded  any  man  to  exercise  ;  and  it  seems  to  have  been  a 
part  of  the  divine  economy  to  surround  it  with  attractions.  Our  nat 
ural  organization  is  fitted  for  the  country,  and  not  for  the  town.  The 
human  eye  is  so  formed  that  it  rests  with  pleasure  on  green  and  blue, 
and  can  not,  indeed,  endure  any  other  color  for  a  long  time  without 


MISCELLANEOUS.  35 

injury.  Our  sense  of  sight  is  never  so  much  delighted,  because  never 
employed  in  a  manner  so  congenial  to  the  nature  of  its  organ,  as  when 
we  look  upward  into  the  clear  blue  of  the  heavens,  or  abroad  upon 
the  green  earth.  When  man  was  entirely  blessed  he  was  placed  in  a 
garden — not  merely  a  patch  for  cabbage  and  potatoes,  three  perches 
square,  and  closed  in  by  a  paling  fence — but  comprehending  grounds 
of  vast  extent  and  boundless  magnificence,  adorned  with  flowers  and 
enriched  with  fruits.  Hill  and  dale,  forest  and  fountain,  shady  walks 
and  sunny  slopes,  rich  fields  and  verdant  meadows,  with  four  great 
rivers  rolling  through  them,  made  a  landscape  such  as  no  eye  has  ever 
seen  since  the  fall.  It  was  here  that  heaven  and  all  happy  constella 
tions  shed  their  selectest  influence  on  the  marriage  of  our  first  parents. 
Imagination  has  never  painted  a  scene  of  perfect  happiness  without 
similar  surroundings.  Scenes  of  idyllian  beauty  form  the  principal 
feature  in  the  heaven  of  every  religion,  whether  true  or  false.  The 
Elysian  Fields  of  the  Greek  mythology,  and  the  paradise  of  Moham 
med,  are  ready  examples.  The  land  which  flowed  with  milk  and  honey 
was,  to  the  Jew,  a  type  of  that  better  country  to  which  he  should  go 
after  his  journey  through  the  wilderness  of  life  was  closed.  And  many 
a  Christian,  when  his  soul  recoiled  from  the  dark  stream  of  death,  has 
felt  his  courage  revived  by  the  assurance  that — 

"  Sweet  fields  beyond  the  swelling  flood 
Stand  dressed  in  living  green.*"1 

Other  occupations  are  followed  for  the  wealth  and  fame  they  produce, 
but  agriculture  is  crowded  with  amateurs,  who  pursue  it  for  its  own 
sake  ;  and  thousands  feel  the  same  desire,  whose  narrow  means  forbid 
them  to  indulge  their  wishes.  When  Cincinnatus  abandoned  the 
leadership  of  the  mightiest  empire  in  the  world  to  hurry  home  and 
finish  his  plowing  before  it  got  too  late  in  the  season,  and  when  Wash 
ington  retired  from  the  presidency  to  cultivate  his  farm,  they  both 
yielded  to  an  inclination  as  common  as  it  was  natural.  The  praise 
they  have  received  for  it  is  a  thousand  times  greater  than  they  de 
served.  The  passion  for  fame,  for  wealth,  or  for  power,  does  undoubt 
edly  predominate  in  some  persons,  but  love  for  the  simple  pleasures  of 
a  country  life  is  seldom  extinguished  in  any  sane  man's  mind. 

These  natural  tastes,  however,  do  not  account  for  all  the  solicitude 
which  is  felt  for  the  prosperity  of  agriculture.  Our  interest  in  it  is 
marvelously  quickened  by  the  fact  that  our  bread  depends  on  it.  It 
is  the  art  preservative  of  all  arts.  Its  success  lies  at  the  foundation 
of  the  general  welfare.  The  fruits  of  the  farmer's  labor  support  the 
industry  of  all  other  classes.  The  ultimate  reward  for  every  species 
of  toil  must  come  directly  or  indirectly  from  the  earth,  that  common 
mother — 


36  MISCELLANEOUS. 

"  Whose  womb  immeasurable,  and  infinite  breast, 
Teems  and  feeds  all." 

But,  though  it  be  true  that  agriculture  is  the  most  useful,  as  well 
as  the  most  attractive,  of  all  pursuits,  it  is  equally  undeniable  that  it 
has  advanced  more  slowly  than  any  other  toward  the  perfection  of 
which  it  is  believed  to  be  capable.  Speaking  comparatively,  it  can 
scarcely  be  said  to  have  advanced  at  all.  In  everything  that  aids 
commerce  and  manufactures,  improvements  are  made  which  have 
changed  the  whole  face  of  human  society.  Those  interests  are  pro 
jected  forward  into  the  future,  with  a  force  which  overleaps  centuries, 
while  agriculture  creeps  on  with  the  slow  pace  of  the  hours.  In  other 
departments  ingenuity  and  skill  have  supplied  the  place  of  labor,  but 
the  hard  toil  of  the  husbandman  has  not  been  perceptibly  lessened,  nor 
his  profits  in  any  striking  manner  increased.  Even  the  useful  im 
provements  that  have  been  invented  are  slowly  and  suspiciously  ac 
cepted.  No  class  of  people  in  the  world,  except  lawyers,  are  more 
reluctant  than  farmers  to  change  an  old  mode  of  procedure  for  a  bet 
ter  one. 

This  has  been  seen  and  felt  as  a  great  misfortune  by  those  who  are 
determined  to  mend  it  if  they  can.  They  do  not  believe  that  there  is 
any  inherent  difficulty  in  the  nature  of  the  subject,  which  should 
make  the  progress  of  agriculture  less  than  that  of  other  tranches  of 
industry.  Scientific  men  and  practical  men — men  who  think  and 
men  who  work — are  everywhere  giving  their  attention  to  this,  as  the 
greatest  of  human  concerns.  If  the  effort  be  successful,  those  who 
aid  in  it  will  earn  a  title  to  public  gratitude  such  as  no  conqueror  ever 
won  with  his  sword. 

One  of  the  forms  which  this  movement  has  taken  is  that  of  Indus 
trial  Exhibitions.  The  great  shows  at  the  Crystal  Palaces  of  New 
York  and  London  may  have  done  some  good.  It  is  certain  that  the 
State  Fairs  have  been  exceedingly  beneficial.  But  County  Exhibi 
tions,  when  they  become  general,  will  be  fairly  worth  all  others  put 
together,  because  their  effect  and  influence  come  directly  home  to  the 
business  and  bosoms  of  the  very  persons  by  whom  alone  the  cause 
must  be  carried  through.  It  is  on  the  local  societies  that  the  chief 
reliance  is  placed.  I  trust  that  the  day  when  an  agricultural  society 
was  formed  here  will  be  an  era  on  which  your  memories  and  those  of 
your  children  will  love  to  linger. 

To  make  the  society  useful,  it  is  necessary  that  we  should  be  as 
nearly  unanimous  as  possible.  We  must  disarm  hostility  wherever  we 
find  it,  and  rouse  the  indifferent  to  active  exertion.  We  may  reason 
ably  hope  that  what  we  see  and  hear  on  this  occasion  will  contribute 
something  to  that  end. 

I  do  not  see  how  any  man  can  withhold  his  assistance  from  you — 


MISCELLANEOUS.  37 

much  less  how  any  one  can  oppose  you — unless  he  belongs  to  one  or 
other  of  the  four  classes  which  I  am  about  to  enumerate :  1.  There 
are  men  who  think  that  agriculture  is  wholly  incapable  of  any  im 
provement  whatsoever.  With  them  farming  is  farming,  and  nothing 
more  ;  knowledge  can  not  do  it  better,  nor  ignorance  worse  ;  the  busi 
ness  is  now,  and  was,  when  Adam  left  the  garden  of  Eden,  in  as  per 
fect  a  condition  as  it  ever  can  be.  2.  Others  believe  that,  though 
much  more  might  be  known,  it  is  not  best  that  they  should  know  too 
much,  especially  about  their  own  business.  In  their  opinion  the  tree 
of  knowledge  continues  to  bear  a  forbidden  fruit,  and  no  man  can 
make  himself  a  perfect  fool  except  in  one  way,  and  that  is  by  being 
wiser  than  his  father.  3.  Those  who  belong  to  the  third  class  assert 
that  agricultural  societies  are  not  the  fit  and  proper  means  of  spread 
ing  among  the  people  the  knowledge  which  they  admit  might,  and 
ought  to  be,  communicated  in  some  way.  4.  The  fourth  set  are 
almost  too  contemptible  to  be  mentioned.  They  bear  to  the  country 
the  same  relation  that  hardened  sinners  do  to  the  Church.  They  don't 
care.  You  may  convince  them  that  this  cause  is  a  good  one,  and  still 
its  success  would  give  them  no  pleasure,  its  failure  no  pain.  Such 
people  never  regard  anything  beyond  their  own  most  immediate  and 
most  selfish  interests. 

It  would  be  an  insult  to  this  assembly  to  suppose  that  it  contains 
a  single  person  of  the  description  last  mentioned.  I  do  not  believe  it 
does.  It  will  be  sufficient,  therefore,  for  all  present  purposes  to  show 
that  great  and  very  desirable  improvements  may  be  made  in  agriculture 
by  means  of  agricultural  societies. 

Improvement — what  do  we  mean  by  that  word  ?  An  art  is  im 
proved  simply  by  the  use  of  more  science  in  the  practice  of  it.  I 
know  very  well  that  the  mention  of  scientific  farming  suggests  to 
many  minds  the  idea  of  a  model  farm,  conducted  on  fanciful  princi 
ples,  by  some  soft-handed  gentleman  with  plenty  of  money  and  not 
much  common  sense — a  place  pleasant  enough  to  look  upon,  but  very 
expensive — absorbing  annually  from  other  sources  of  the  owner's  in 
come  three  or  four  times  as  much  as  it  produces.  But  this  is  not 
what  I  mean.  The  improvements  I  speak  of  are  those  which  will 
lighten  labor  and  swell  the  profits  ;  improvements  which  can  be  meas 
ured  by  the  increased  value  of  your  land,  and  the  additional  number 
of  dollars  in  your  purse  at  the  end  of  each  year. 

The  earth  is  a  machine,  with  certain  powers  which  are  in  constant 
motion  during  the  summer  season,  carrying  on  the  process  of  vegeta 
tion.  Like  other  machines,  it  is  liable  to  get  out  of  order.  It  also 
resembles  other  machines  in  the  fact  that  the  value  of  its  products 
depends  mainly  on  the  skill  and  care  of  those  who  attend  it.  Badly 
managed,  it  turns  out  bad  work,  in  small  quantities,  and  its  powers 
are  speedily  exhausted.  With  more  skill,  it  will  yield  larger  and  bet- 


38  MISCELLANEOUS. 

ter  products,  with  less  labor  and  expense,  while  its  capabilities  will 
become  greater  by  use.  The  knowledge  necessary  to  keep  this  grain 
and  fruit  making  machine  running  to  the  best  advantage  is  agricultu 
ral  science. 

If  you  relied  for  a  living  on  a  water-mill  or  a  steam-engine,  you 
would  not  be  content  without  knowing  as  much  about  its  structure, 
and  the  laws  of  its  motion,  as  would  enable  you  to  get  the  most  out 
of  it  with  the  least  wear  and  tear.  This  would  be  mechanicarscience. 

Science  is  the  handmaid  of  art.  The  latter  can  not  exist,  even  in 
a  rude  state,  without  the  former.  I  do  not  say  that  every  artisan  is 
bound  to  comprehend  the  whole  theory  of  his  trade.  But  he  should 
know — or,  at  least,  he  should  not  refuse  to  know — the  practical  re 
sults  of  other  people's  experience,  as  well  as  his  own.  Very  little  is 
done  in  this  world  by  mere  force.  Blind  labor  swells  its  muscles  and 
strains  its  nerves  to  no  purpose.  The  miner  digs  in  vain  until  geology 
tells  him  the  position  of  the  treasure  he  seeks.  The  dyer  can  not 
make  his  colors  adhere  unless  chemistry  furnishes  him  a  mordant. 
Optics  must  teach  the  painter  the  law  of  perspective  before  his  picture 
will  stand  out  on  the  canvas.  The  vessel  of  the  mariner  will  float  at 
random  until  he  learns  from  natural  philosophy  that  the  magnetic 
needle  points  to  the  pole. 

It  is  thus  that  Science  aids  us  in  the  commonest  business  of  life, 
and  scarcely  claims  the  work  as  her  own.  Star-eyed  and  glorious  as 
she  is,  she  disdains  not  the  humblest  employments.  She  comes  to  you 
with  benevolence  and  truth  beaming  from  her  face,  and  offers  her 
service,  not  only  to  decorate  your  houses  and  train  the  flowers  in  your 
garden-plots,  but  to  fashion  your  implements,  to  compound  your  ma 
nures,  to  sow  and  gather  your  crops — to  relieve  you,  in  short,  from  a 
whole  world  of  drudgery,  and  to  scatter  plenty  all  over  the  smiling 
land.  She  will  put  time  and  space  under  your  command,  and  pour 
out  uncounted  heaps  of  treasure  at  your  feet.  It  was  of  her  that  Solo 
mon  spoke  when  he  said  :  "  Her  merchandise  is  richer  than  the  mer 
chandise  of  silver,  and  the  gain  thereof  greater  than  fine  gold.  She  is 
more  precious  than  rubies,  and  all  thou  canst  desire  is  not  to  be  com 
pared  unto  her.  Length  of  days  is  in  her  right  hand,  and  in  her  left 
hand  riches  and  honor." 

Without  Science,  man,  the  ruler  of  this  world,  would  be  the  most 
helpless  of  all  animated  beings.  His  Creator  made  him  the  monarch 
of  the  earth,  and  gave  him  dominion  over  it,  to  govern  and  control  it ; 
to  levy  unlimited  contributions  upon  it,  and  convert  everything  in  it 
to  his  own  use.  But  he  found  himself  at  the  head  of  a  revolted  em 
pire.  All  its  physical  forces  were  in  a  state  of  insurrection  against  his 
lawful  authority.  The  inferior  animals  were  his  enemies.  The  storms 
poured  their  fury  on  his  unsheltered  head.  He  was  terrified  by  the 
roar  of  the  thunder,  and  the  lightning  seared  his  eyeballs.  He  was 


MISCELLANEOUS.  39 

parched  under  the  hot  sun  of  summer,  and  in  winter  he  was  pierced 
by  the  cold.  The  soil,  cursed  for  his  sake,  produced  thorns  and  this 
tles.  The  food  that  might  sustain  his  life  grew  beside  the  poison  that 
would  destroy  it,  and  he  knew  not  how  to  distinguish  the  one  from 
the  other.  The  earth  hid  her  minerals  deep  in  her  bosom,  and  guarded 
them  with  a  rampart  of  thick-ribbed  rocks.  The  rivers  obstructed 
his  passage  ;  the  mountains  frowned  their  defiance  upon  him  ;  and  the 
forest  spread  its  gloom  around  him,  breathing  a  browner  horror  upon 
the  dangers  that  beset  his  way.  If  he  left  the  dry  land  and  'trusted 
himself  to  the  ocean,  the  waters  yawned  to  engulf  him,  and  the  tem 
pest  came  howling  on  his  track.  He  seemed  an  exile  and  an  outcast 
in  the  world  of  which  he  was  made  to  be  the  sovereign.  But  Science 
comes  to  rescue  the  powerless  king  from  his  misery  and  degradation. 
Gradually  he  learns  from  her  the  laws  of  his  empire  and  the  means 
by  which  his  rebel  subjects  may  be  conquered.  From  age  to  age  he 
accumulates  the  knowledge  that  clothes  him  with  power  and  fills  his 
heart  with  courage.  Step  after  step  he  mounts  upward  to  the  throne 
which  God  commissioned  him  to  fill.  He  holds  a  barren  scepter  in  his 
hand  no  longer.  Creation  bends  to  do  him  homage.  The  subjugated 
elements  own  him  for  their  lord,  yield  him  their  fealty,  and  become 
the  servants  of  his  will.  The  mine  surrenders  its  treasures  ;  the  wil 
derness  blooms  around  him  like  a  new  Eden ;  the  rivers  and  the  sea 
bear  his  wealth  upon  their  bosom  ;  the  winds  waft  his  navies  round  the 
globe ;  steam,  the  joint  product  of  fire  and  water,  becomes  his  obe 
dient  and  powerful  slave ;  the  sunbeams  are  trained  to  do  his  paint 
ing  ;  the  lightning  leaps  away  to  carry  his  messages,  and  the  earth 
works  with  ceaseless  activity  to  bring  forth  whatever  can  minister  to 
his  gratification. 

But  the  whole  of  his  empire  has  not  yet  been  entirely  subdued. 
The  richest  portion  of  it — the  agricultural  region — has  been  much 
neglected,  and  there  he  has  won  but  a  partial  supremacy.  Science  is 
organizing  an  "army  of  occupation"  to  march  into  it  to  take  com 
plete  possession,  to  tame  the  rebellion  of  Nature,  and  to  bring  all  her 
powers  under  the  absolute  sway  of  man,  their  imperial  master.  You 
will  volunteer  for  the  war  when  you  think  how  much  has  been  effected 
in  other  departments  by  similar  expeditions.  The  fight  is  not  to  be 
dangerous,  nor  the  result  doubtful.  At  the  worst  you  will  only  be 
annoyed  for  a  while  by  Ignorance  and  Error,  those  savage  but  not  very 
formidable  bush-fighters,  who  will  hang  upon  your  flank  and  rear. 
The  victory,  which  must  come,  will  crown  you  with  laurels,  bloodless 
but  green  with  an  everlasting  verdure,  and  load  you  with  spoils  to 
enrich  you  and  your  children  in  all  coming  generations. 

Every  one  knows  that  this  is  an  age  of  progress.  No  one  is  so 
ignorant  as  not  to  know  that  in  modern  times  the  laws  of  nature  have 
been  revealed  with  a  fullness,  and  defined  with  a  precision,  unparalleled 


40  MISCELLANEO  US. 

at  any  former  period.  It  is  equally  well  known  that  these  discoveries 
have  been  used,  with  prodigious  effect,  in  all  the  arts,  except  agricult 
ure,  to  which  they  are  applicable.  The  facts  and  figures  which  mark 
some  of  the  capital  points  of  this  progress  will  not  be  inappropriate  ; 
for  I  repeat  that  Science  stands  ready  to  do  for  you  all  that  she  has 
done  and  is  doing  for  others. 

A  single  steam-engine  now  carries  at  the  rate  of  five  hundred  miles 
a  day  the  same  quantity  of  goods  which,  forty  years  ago,  it  required 
seven  hundred  and  fifty  horses  to  haul  at  the  rate  of  fifteen  miles 
a  day. 

In  the  business  of  weaving,  one  man  now  does  with  ease  what  it 
taxed  the  hard  labor  of  twelve  hundred  to  perform  before  the  inven 
tion  of  the  power-loom. 

All  sorts  of  manufactures  are  carried  on  in  ways  so  much  superior 
to  those  which  were  used,  even  one  generation  ago,  that  goods  of 
every  description  are  furnished  to  the  consumer  very  much  cheaper, 
and  many  of  them  at  less  than  one  tenth  of  their  former  price ;  and 
this,  although  the  demand  has  been  enormously  increased,  and  the 
profits  of  the  manufacturer  are  much  greater  than  ever. 

Macaulay  says  that  in  the  reign  of  Charles  II — not  further  back 
than  twice  the  length  of  an  old  man's  life — a  letter  sent  by  mail  from 
London  to  one  of  the  midland  counties  of  England,  where  it  would 
go  now  in  four  or  five  hours,  was  as  long  in  reaching  its  destination 
as  it  would  be  at  this  day  in  going  from  London  to  the  interior  of 
Kentucky. 

A  man  may  start  from  here,  cross  the  Atlantic,  visit  every  capital 
city  in  Europe,  and  return  home  again,  in  less  time  than  used  to  be 
required  for  a  trip  to  St.  Louis. 

The  means  by  which  those  who  "go  down  to  the  great  sea  in 
ships  "  have  brought  their  art  to  its  present  state,  is  an  illustration  as 
striking  as  any  that  could  be  given  of  the  practical  use  which  has 
been  made  of  scientific  discoveries.  It  is  an  old  tradition  that  the 
first  idea  of  navigation  was  suggested  to  the  mind  of  an  ingenious 
savage  by  seeing  a  hollow  reed,  which  had  been  split  longitudinally, 
floating  on  the  water.  He  took  the  hint  and  made  himself  what,  in 
Western  phrase,  would  be  called  a  "dug-out."  In  process  of  time 
oars  were  added.  Then  came  a  more  complicated  vessel,  with  sails  to 
move  and  a  rudder  to  guide  her.  In  this  a  bold  navigator  would  vent 
ure  from  headland  to  headland,  keeping  one  eye  carefully  on  the 
shore  and  the  other  on  the  clouds.  At  length  they  learned  from  the 
old  Chaldean  shepherds  how  to  steer  by  the  stars.  With  this  little 
knowledge  of  astronomy  they  went  far  away  from  land,  though  it 
became  wholly  useless  just  at  the  time  it  was  most  needed — when  the 
skies  were  overclouded  and  the  tempest  came  out  on  the  deep.  Navi 
gation  stood  still  at  that  point  for  thousands  of  years,  because  it  was 


MISCELLANEOUS.  41 

believed  (as  some  farmers  now  believe  of  their  art)  that  it  was  already 
too  perfect  to  be  improved.  But  see  what  modern  discoveries  have 
brought  it  to  !  The  mariner  now  leaves  the  port  of  his  departure  with 
a  serene  and  steady  confidence  in  his  resources.  Astronomy,  natural 
philosophy,  optics,  magnetism,  the  whole  circle  of  the  physical  sci 
ences,  and  numerous  instruments,  contrived  with  the  most  exquisite 
mechanical  skill,  are  all  at  his  command.  He  can  measure  his  rate  of. 
sailing  exactly,  and  knows  the  course  he  is  on  with  absolute  certainty. 
When  he  is  a  thousand  miles  out,  if  he  doubts  the  accuracy  of  his 
reckoning,  he  is  able  to  correct  it.  He  lifts  to  his  eye  a  tube  fitted 
with  glasses  through  which  he  can  see  far  out  into  illimitable  space — 
many  millions  of  miles  beyond  the  reach  of  his  unassisted  vision. 
He  ascertains  the  relative  position  of  some  awfully  distant  world  ;  and 
thence,  with  the  help  of  his  chronometer  and  his  nautical  almanac, 
he  calculates  his  longitude.  Another  observation  with  a  different  in 
strument  upon  another  celestial  body  gives  him  the  means  of  finding 
his  distance  from  the  equator.  Combining  these  two  results,  he  puts 
his  finger  upon  a  spot  in  the  chart  and  says  with  undoubting  confi 
dence,  "  I  am  precisely  there."  Geography  tells  him  where  to  steer 
his  vessel  for  the  port  of  her  destination,  and  how  to  avoid  all  the  dan 
gers  that  lie  between.  He  holds  her  head  to  the  true  course,  and 
fearlessly  stretches  away  over  the  dark-blue  waters,  and  they  bear  him 
onward  like  the  horse  that  knoweth  its  rider.  When  to  this  is  added 
the  power  of  steam  to  propel  him,  it  may  well  be  said  that  he  has 
conquered  both  wind  and  wave.  Fire  may  consume  his  vessel,  or  an 
iceberg  may  shatter  it ;  but  the  ordinary  perils  of  the  sea  are  reduced 
almost  to  nothing. 

Our  all-wise  Creator  has  endowed  us  with  no  faculty  in  vain.  He 
permits  us  to  discover  no  useless  truth.  Some,  which  appeared  the 
most  unpromising  and  barren,  have  borne  the  richest  fruit.  A  name 
less  philosopher,  somewhat  more  than  three  thousand  years  ago,  was 
handling  a  piece  of  amber,  called  in  his  language  electron.  He  saw 
that,  when  it  was  briskly  rubbed,  it  had  the  power  of  attracting  and 
holding  to  it  certain  light  substances.  He  thought  it  was  endued 
with  some  kind  of  animal  life.  This  satisfied  him,  and  no  better  ex 
planation  of  the  marvel  was  given  for  several  centuries.  Yet  there 
was  the  germ  of  that  science  out  of  which  arose  the  voltaic  pile  and 
the  galvanic  battery,  whose  powerful  interrogations  of  nature  have 
compelled  her  to  yield  up  the  most  important  secrets  of  chemistry. 
Still,  no  one  dreamed  of  the  identity  of  lightning  and  electricity  ;  and 
Franklin's  letter,  suggesting  it,  was  read  in  the  Royal  Society  at  Lon 
don  amid  roars  of  laughter.  Neither  philosophers  nor  unlearned  men 
could  believe  that  the  crackling  noise  produced  by  rubbing  a  cat's 
back  was  caused  by  the  same  agent  which  "splits  the  unwedgeable 
and  gnarled  oak."  But  Franklin  quietly  drew  it  down  from  the  cloud 


42  MISCELLANEOUS. 

along  the  string  of  his  kite,  and  he  knew  that  his  name  was  linked 
forever  with  the  grandest  discovery  of  the  age.  It  was  immediately 
turned  to  practical  account.  In  every  part  of  the  civilized  world  iron 
rods  arose  above  the  houses,  and  pointed  toward  heaven,  to  catch  the 
lightning  and  lead  it  away.  Franklin  had  accomplished  for  all  timid 
people  what  Macbeth  desired  for  himself,  when  he  wished  that  he 

might 

"...  tell  pale-hearted  Fear  it  lies, 
And  deep  in  spite  of  thunder" 

But  the  end  was  not  yet.  The  great  triumph  of  the  amber  science 
was  still  to  be  achieved.  You  see  it  now  in  the  vast  system  of  electric 
wires  distributed  all  through  the  country,  along  which  the  "  sulphur 
ous  and  thought-executing  fires  "  go  flashing  with  intelligence,  wher 
ever  they  are  sent  by  the  will  that  controls  them — bearing  the  news  of 
life  and  death  over  mountain  and  lake,  and  river  and  valley — clearing 
thousands  of  miles  at  a  single  bound.  By  means  of  this  amazing  in 
strument  the  eloquence  of  the  statesman  thrills  in  the  nerves  of  the 
people  at  each  extremity  of  the  nation  almost  as  soon  as  it  is  uttered 
at  the  Capitol ;  the  friend  at  one  side  of  the  continent  takes  counsel 
with  his  friend  at  the  other,  as  if  they  stood  face  to  face ;  and  the 
greeting  of  the  far-off  husband  leaps  in  an  instant  to  the  heart  of  his 
wife,  and  makes  the  fireside  of  his  distant  home  glad  with  the  knowl 
edge  of  his  safety. 

Science  has  extended  her  dominion  even  over  regions  which  seemed 
to  be  entirely  ruled  by  the  fickle  scepter  of  Chance.  Life  is  proverbial 
ly  uncertain  ;  yet  nothing  can  be  truer  than  the  life-tables  of  an  insur 
ance  company,  when  its  officers  desire  to  make  them  so.  The  destiny 
of  each  human  individual  is  hid  in  deep  obscurity — shadows,  clouds, 
and  darkness  rest  upon  it,  and  conceal  it  from  every  eye  except  the 
all-seeing  One.  But  disease  and  mortality  do  their  work  on  large 
communities  by  general  laws.  The  average  duration  of  life,  and  the 
average  amount  of  sickness,  in  a  nation,  can  be  counted  beforehand 
with  perfect  accuracy.  Thus,  while  the  individual  man  is  a  mystery 
to  be  solved  by  Omniscience  alone,  man  in  the  aggregate  is  reduced 
by  his  brother-man  to  a  mathematical  problem. 

We  dare  not  boast  of  much  improvement  in  law  or  politics.  In 
deed,  they  seem  to  be  growing  worse.  While  other  things  are  rising, 
they  have  a  fatal  proclivity  for  the  downward  track.  They  darken 
with  error  in  the  full  blaze  of  surrounding  truth.  But  medicine  has 
advanced  with  magnificent  strides.  Life  is  much  longer,  and  health 
far  better,  than  they  used  to  be.  When  the  cholera  came  to  London  in 
a  form  so  frightful  that  every  one  was  appalled  by  the  report  of  its 
ravages,  the  mortality  was  not  greater  than  it  had  been  at  the  health 
iest  times  a  hundred  and  fifty  years  earlier.  Truly  did  Solomon  say 
that  "  Wisdom  has  length  of  days  in  her  right  hand." 


MISCELLANEOUS.  43 

What  the  trade  of  the  Mississippi  and  the  Hudson  was  before 
steamboats — what  the  manufacture  of  cotton  was  before  the  days  of 
Arkwright  or  Whitney — what  ocean-navigation  was  before  the  inven 
tion  of  the  compass — what  land-traveling  was  before  railroads — what 
medicine  was  when  a  patient  was  steamed  for  the  small-pox — such  is 
agriculture  in  the  present  stage  of  its  progress.  It  will  not  have  its 
due  until  it  is  up,  at  least,  to  their  present  condition.  There  is  a  cer 
tain  amount  of  skill  and  science  applied,  every  day,  to  the  working  of 
this  machine,  which  we  call  the  earth.  It  would  be  as  wise  to  forget 
all  that  as  to  learn  no  more.  He  who  has  a  race  to  run  is  not  surer  of 
losing  the  prize,  when  he  turns  upon  his  tracks,  than  when  he  stands 
still  in  the  midst  of  his  career.  To  look  back  over  the  ground  already 
traversed  will  be  an  incentive  to  the  work  which  is  yet  to  be  accom 
plished.  If  something  has  been  done  in  the  dark  time  that  is  long 
since  past,  what  may  we  not  hope  for  with  the  sunlight  of  modern 
civilization  beaming  on  our  path  ?  It  may  startle  some  of  you,  and 
sound  in  your  ears  like  a  slander,  to  tell  you  that  you  are  all  scientific 
farmers.  It  is  true,  nevertheless.  That  knowledge,  whether  it  be 
much  or  little,  which  comes  from  experience,  remembered  and  ar 
ranged  so  as  to  be  ready  for  use  when  wanted,  is  science.  There  was 
a  time  when  it  did  not  exist  at  all  in  any  degree.  When  we  reflect 
how  high  we  are  placed  by  the  little  we  have  above  those  who  have 
none,  and  what  a  struggle  it  must  have  cost  somebody  to  introduce  it 
at  the  beginning,  we  shall  appreciate  its  value,  and  perhaps  make  an 
effort  to  get  more. 

Let  your  imaginations  carry  you  back  to  the  time  when  agriculture 
was  in  its  infancy — before  the  earliest  dawn  of  Greek  civilization.  In 
those  days  men  depended  principally  upon  the  chase  for  a  living. 
They  ate  the  flesh  and  clothed  themselves  with  the  skins  of  wild 
beasts.  Fruits  and  other  vegetables  of  spontaneous  growth  added  to 
their  luxuries  in  summer.  They  were  not  long  in  discovering  one 
fundamental  law  of  nature,  namely,  that  seeds  deposited  in  the  ground 
would  grow,  and  produce  similar  seeds  in  larger  quantities.  But  they 
knew  nothing  of  the  difference"  between  one  soil  and  another.  They 
preferred  the  poorest,  because  it  was  easiest  cleared,  and,  lying  higher 
up  on  the  ridges,  it  needed  no  draining.  Here  they  made  holes  in 
the  ground  with  sticks,  and  dropped  the  seeds  a  few  inches  below  the 
surface.  The  rest  was  left  to  nature.  If  such  cultivation  gave  them 
a  two  or  three-fold  crop,  they  were  lucky.  It  happened  much  oftener 
that  its  growth  was  choked  with  weeds,  or  that  it  met  with  some  other 
evil  chance  by  which 

"  The  green  corn  perished  ere  his  youth  attained  a  heard." 

The  planting  and  gathering  were  left  to  women  and  children  ;  the 
men  despised  such  work,  as  being  inconsistent  with  their  honor  and 


44  MISCELLANEOUS. 

dignity.  Hunting  and  fighting  were  the  employments  in  which  they 
found  pleasure  and  glory,  as  well  as  food  and  clothing.  But  there 
was  one  man  among  them  more  thoughtful  and  observant  than  all  the 
rest.  He  had  watched  the  unfolding  vegetation,  from  the  sprouting 
of  the  seed  to  the  maturity  of  the  fruit,  with  a  keen  perception  of  the 
whole  marvelous  and  beautiful  process  ;  and  he  devoted  his  attention 
to  the  rearing  of  useful  grains  with  a  pleasure  which  he  had  never  felt 
in  the  excitement  of  the  chase.  He  discovered  the  proper  season  for 
planting ;  he  noticed  that  weeds  were  unfriendly  to  the  growth  of  his 
crops ;  he  found  that  mixing  certain  substances,  such  as  ashes  and 
decomposed  leaves,  with  the  soil,  would  increase  its  productiveness ; 
he  learned  that  stirring  the  ground  about  the  roots  of  a  plant  would 
make  it  thrive  more  rapidly ;  he  even  got  himself  a  kind  of  hoe  made 
by  some  cunning  worker  in  iron.  Here  was  a  philosopher,  whose  intel 
lectual  stature  rose  high  above  that  of  his  fellows.  Being  a  patriot, 
also,  and  willing  to  do  good  for  his  countrymen,  he  conceived  the 
thought  of  persuading  them  to  quit  hunting  and  win  a  surer  living 
from  the  earth.  At  his  request  they  assembled  under  the  spreading 
oaks  to  hear  his  plans  ;  and  this  was  the  first  agricultural  meeting — I 
will  not  say  the  first  on  record,  for  I  do  not  know  that  it  is  recorded, 
but  certainly  the  earliest  you  ever  heard  of.  The  sage  unfolded  his 
new  science  to  them,  proving  it,  as  he  went  along,  by  the  facts  of  his 
own  experience.  The  chase,  he  said,  was  a  precarious  business  at 
best,  while  agriculture  would  be  a  sure  and  steadfast  reliance.  He 
told  them  that  he  himself,  with  the  moderate  labor  of  his  own  hands, 
had  gained  in  a  single  season  what  would  sustain  life  longer  and  better 
than  all  the  spoils  taken,  during  the  same  time,  by  the  best  ten  of 
their  hunters.  This,  he  asserted,  was  true  of  an  ordinary  season,  but 
sometimes  the  game  disappeared  entirely.  His  voice  grew  deeper, 
and  its  tones  had  a  melancholy  impressiveness,  as  he  described  the 
sufferings  endured  by  them  all,  when  they,  the  strong  sons  of  the 
wilderness,  with  their  wives  and  children,  became  the  prey  of  gaunt 
famine  and  wide-wasting  pestilence.  He  concluded  by  promising  that 
long  lives  of  wealth  and  contentment  should  repay  them  for  a  general 
devotion  of  their  labor  to  the  cultivation  of  the  earth. 

No  cheers  followed  the  speech,  but,  on  the  contrary,  hoarse  mur 
murs  of  disapprobation  came  up  from  the  multitude,  swelling  by  de 
grees  into  loud  opposition.  The  new  measure  was  attacked  with  all 
those  shallow  sophistries — those  miserable  fallacies  so  hollow  and 
truthless — with  which  Conservatism  arms  her  ignorant  votaries.  That 
solitary  defender  of  truth  was  overwhelmed  by  the  sort  of  arguments 
which  are  sometimes  reproduced  in  modern  political  meetings  and 
legislative  bodies.  Some  accused  him  of  a  deep  design  upon  their 
liberties.  Some  declared  that  he  had  opposed  the  nation  in  its  last 
quarrel,  and  was,  in  fact,  no  better  than  a  traitor.  One  set  knew  him 


MISCELLANEOUS.  45 

to  be  unsound  in  his  religious  faith,  and  brought  all  the  prejudices  of 
superstition  into  the  field  against  him.  Others  charged  down  upon 
him  with  a  whole  army  of  "illustrious  ancestors,"  whose  opinions, 
they  said,  were  not  like  his.  Others  still  there  were  who  could  see 
no  objection  to  the  man  or  the  measure,  but  this  was  not  the  proper 
occasion — the  time  was  out  of  joint.  A  portion  of  the  crowd  saw,  in 
their  much  wisdom,  that  to  quit  hunting  would  enervate  their  frames 
and  make  them  a  race  of  cowards.  Most  powerful  of  all,  and  most 
profoundly  wise  in  their  own  conceit,  was  the  party  who  declared  they 
would  never  consent  to  the  enormous  sacrifice  of  property  required  by 
such  an  innovation.  They  had  invested  a  large  capital  in  bows  and 
arrows,  and  spears  and  traps,  and  knives  ;  and  these  would  all  be  use 
less  if  their  future  occupation  was  to  consist  in  tilling  the  ground. 
There  was  one  mighty  man  there — a  blacksmith,  who  had  gained 
great  consequence,  and  earned  innumerable  skins,  by  making  the 
weapons  which  were  used  in  killing  the  beasts  of  the  forest.  He 
thought  his  craft  was  in  danger,  and  he  objected  to  agriculture  for 
the  same  reason  that  Demetrius,  the  silversmith,  afterward  opposed 
Christianity.  He  put  an  end  to  all  discussion  by  uttering  a  catch 
word  with  just  enough  of  no  meaning  in  it  to  make  his  friends  unani 
mous.  He  lifted  up  his  big  voice  and  cried  out,  "  Great  is  Diana,  the 
goddess  of  the  bow  and  the  patroness  of  hunters."  The  whole  assem 
bly  in  full  chorus  echoed  the  cry,  and  there  was  a  great  uproar.  They 
would  have  stoned  their  prophet,  for  the  sight  of  his  meek  countenance 
and  the  recollection  of  his  blameless  life  exasperated  their  wrath  ;  but 
no  one  proposed  it,  and  he  was  suffered  to  escape. 

This  primitive  apostle  of  agricultural  science  was  defeated.  He 
died  in  the  melancholy  belief  that  his  people  were  destined  to  remain 
forever  in  barbarism.  But  not  so.  A  truth  had  been  spoken ;  and 
truth  can  never  die.  It  had  gone  down  in  the  shock  of  the  first  en 
counter  with  falsehood,  but  it  was  not  crushed.  Agriculture  found 
an  efficient  champion  where  such  a  thing  could  least  have  been  ex 
pected.  At  the  great  meeting  under  the  trees  there  was  a  little  girl, 
whose  parents  had  both  died  of  starvation,  and  her  two  brothers  had 
perished  in  the  pestilence  which  followed  the  famine.  Hunger  and 
its  concomitants  had  carried  away  every  relative  she  ever  had.  She 
was  gifted  by  nature  with  a  quick  intellect  and  a  kind  heart ;  and  her 
lonely  condition  had  made  her  thoughtful  and  wise  above  her  years. 
She  listened  to  the  words  of  the  sage  with  beaming  eye  and  flushed 
cheek,  and  lips  parted  in  breathless  interest.  When  she  heard  a  pro 
posal  to  furnish  bread  in  abundance — bread  at  all  times — bread  which 
would  always  stay  the  ravages  of  famine,  whether  game  was  plenty  or 
scarce — it  roused  every  faculty  of  her  mind.  She  knew  the  whole 
subject  by  heart  as  soon  as  she  heard  it  explained.  Henceforth  she 
had  neither  eye  nor  ear  for  anything  else.  She  gave  herself  up  en- 


46  MISCELLANEOUS. 

tirely  to  the  one  great  task  of  spreading  agricultural  science.  Every 
day  added  to  her  own  knowledge,  and  to  the  irresistible  power  with 
which  she  impressed  it  on  other  minds.  She  grew  up  with  a  lustrous 
beauty  which  seemed  more  than  mortal.  Her  elocution,  though  gentle 
and  persuasive,  had  all  the  vigor  which  springs  from  enthusiasm.  She 
swayed  those  rude  men  with  an  influence  they  had  never  felt  before. 
One  after  the  other  her  countrymen  threw  away  their  bows  and  spears, 
and,  with  hoes  in  their  hands,  came  and  placed  themselves  under  her 
tutelage.  What  she  was  unable  to  teach  they  learned  from  their  own 
experiences  mutually  communicated.  Soon  all  the  hill-sides  were 
covered  with  rich  crops  of  waving  grain,  and  the  heavy  timber  began 
to  disappear  from  the  bottom-lands.  Stately  houses  took  the  place  of 
the  mean  hovels  which  the  hunters  had  occupied.  All  the  beasts  of 
the  forest  which  could  be  made  useful  to  man  were  domesticated. 
The  wild  boar  was  captured  and  tamed  for  the  sake  of  his  flesh  ;  the 
sheep  submitted  to  the  shearer ;  the  ox  bowed  his  shoulder  to  the 
yoke  ;  and  the  mouth  of  the  horse  became  acquainted  with  the  bridle- 
bit.  The  wild  fruits  were  transplanted  into  gardens  and  orchards, 
and  were  totally  changed  under  the  influence  of  a  careful  culture. 
The  sour  grape  became  a  delicate  luxury  ;  the  useless  crab  grew  to  be 
an  apple ;  the  sloe  expanded  into  a  delicious  plum ;  and  a  nameless 
fruit,  resembling  the  bitter  almond,  swelled  out  into  a  peach,  with 
surpassing  richness  of  flavor.  New  implements  of  husbandry  were 
successively  invented.  The  plow,  the  harrow,  the  sickle,  and  the 
scythe,  each  had  its  share  in  making  the  general  prosperity  greater. 

Agriculture  once  established  became  the  parent  of  other  arts. 
Navigation,  commerce,  and  manufactures  added  to  their  wealth. 
Cities  rose  up  filled  with  a  refined  population.  The  nation  grew 
strong  and  powerful,  and  spread  its  dominion  far  and  wide.  The 
name  of  a  Greek  became  synonymous  with  all  that  was  great  among 
men.  Their  descendants  were  painters  and  sculptors,  who  furnished 
the  models  for  every  succeeding  generation ;  poets,  whose  sublime 
strains  have  been  feebly  imitated  ever  since  ;  philosophers  and  states 
men,  whose  words  of  wisdom  will  be  heard  with  reverence  to  the  end 
of  time  ;  warriors,  whose  deeds  made  Thermopylae  and  Marathon  the 
watchwords  of  the  free  ;  and  orators — 

"  Who  wielded  the  fierce  democratic  at  will, 
Shook  the  arsenal,  and  fulorined  over  Greece." 

They  were  not  unmindful  of  the  benefactress  who  had  given  the 
first  impulse  to  their  high  career.  They  assigned  her  a  celestial 
parentage.  Temples  were  erected  to  honor  her.  They  believed  that, 
though  her  home  had  long  been  fixed  among  the  stars,  she  still  pre 
sided  over  their  affairs,  and  pleaded  their  cause  in  the  senate  of  the 
gods.  They  painted  her  figure  as  they  imagined  it,  all  radiant  with 


MISCELLANEOUS.  47 

supernatural  beauty — her  hand  bearing  the  horn  of  plenty,  and  her 
head  garlanded  with  ears  of  wheat.  They  worshiped  her  with  all  the 
fervor  of  idolatrous  veneration,  and  for  a  long  lapse  of  centuries  they 
knew  not  that  the  labors  of  the  farm  were  blessed  and  rewarded  by  a 
greater  deity  than  Ceres.  To  this  day  we  keep  her  memory  alive  by 
calling  the  most  useful  of  agricultural  products  after  her  name — the 
cereal  grains. 

Such,  we  may  suppose,  was  the  transition  state  of  agriculture — 
the  passage  from  ignorance,  barbarism,  sloth,  and  hunger  to  'system 
atic  industry,  refinement,  and  plenty.  It  was  only  a  beginning.  It 
has  been  advancing  somewhat  ever  since,  though  the  arts  which  sprang 
from  it  have  outgrown  their  parent.  Numberless  instruments  for  the 
saving  of  labor  and  time  have  been  invented.  Preparing  the  ground, 
sowing,  harvesting,  and  thrashing  may  all  be  done  now  with  machinery 
vastly  improved.  The  character,  nature,  and  value  of  many  products 
are  better  understood.  New  breeds  of  stock  are  introduced.  Chem 
istry  analyzes  every  soil,  and  shows  precisely  what  elements  it  needs  to 
increase  its  fertility.  Highly  concentrated  manures  are  imported  from 
the  most  distant  parts  of  the  world,  and  others  are  manufactured  at 
home,  out  of  substances  which,  once,  were  not  only  wasted,  but  suf 
fered  to  reek  their  offensive  odors  on  the  atmosphere,  and  poison  the 
health  of  the  people. 

In  the  days  of  Augustus  the  fields  of  Italy  (then  the  center  of  civ 
ilization)  were  cultivated  with  an  instrument  resembling  what  we  call 
a  shovel-plow,  only  it  seems  to  have  had  no  shovel.  The  immediate 
predecessor  of  the  patent  plow,  in  use  at  the  present  time,  was  not 
much  better.  Most  of  you  remember  it — "a  low,  long,  rakish-look 
ing  craft,"  whose  wooden  mold-board  had  to  be  cleaned  every  ten 
rods,  and  its  wrought-iron  share  and  coulter  taken  to  the  blacksmith's 
shop  at  least  once  a  week. 

The  most  important  improvements  yet  made  in  agriculture  have 
never  been  adopted  here.  A  simple  fact  will  show  how  much  they 
have  done  for  another  country.  Mr.  Malthus,  one  of  the  profoundest 
thinkers  of  his  day,  calculated  that  the  population  of  England  would 
increase  so  rapidly,  supposing  its  natural  growth  to  be  unchecked, 
that  at  the  end  of  a  certain  time  the  soil  would  not  yield  a  subsist 
ence  for  the  half  of  the  people.  For  the  other  half  starvation  was 
the  only  prospect,  unless  a  merciful  Providence  would  kindly  send 
war,  pestilence,  and  plague  to  thin  them  out,  and  reduce  their  num 
bers  to  a  level  with  the  quantity  of  food  which  they  could  produce. 
This  dismal  theory  was  believed  by  the  foremost  men  in  the  world ; 
and  it  would  have  been  true,  if  the  land  had  not  afterward  been  culti 
vated  with  greater  skill  than  before.  But  it  turned  out  to  be  a  total 
mistake.  The  population  of  England  did  increase  as  rapidly  as  Mal 
thus  predicted  ;  but  the  agricultural  products  of  the  country  have  in- 


4:8  MISCELLANEOUS. 

creased  in  a  ratio  two  hundred  and  fifty  per  cent  greater  than  the 
population.  The  people  who  were  to  have  been  starved  long  ago,  or 
else  prematurely  cut  off  by  millions  at  a  blow,  are  living  better  than 
ever,  with  two  and  a  half  times  as  much  food  for  each  individual  as 
they  had  when  that  theory  was  announced. 

With  the  system  of  cultivation  practiced  now  in  some  parts  of 
Europe,  the  soil  of  Pennsylvania  could  be  made  to  support  fifteen 
millions  of  persons.  There  are  large  regions  in  Scotland,  naturally 
poorer  than  any  land  we  have  in  this  country,  and  under  a  sky  far 
less  genial  than  ours,  covered  all  over  with  crops  which  the  richest 
valleys  in  the  West  would  not  be  ashamed  of ;  and  wheat  is  produced, 
bushel  for  bushel,  at  a  less  expense  than  it  is  here. 

This  is  but  the  beginning  of  the  end.  All  that  has  yet  been  done 
is  as  nothing  compared  to  what  may  yet  come.  Hitherto  agriculture 
has  been  traveling  over  rough  roads  in  an  old-fashioned,  slow  coach. 
She  is  about  to  take  the  railroad,  and,  with  a  mighty  train  of  her 
sister  arts,  she  will  go  sweeping  along.  Not  being  either  a  prophet, 
or  the  son  of  a  prophet,  I  have  no  right  to  predict  anything.  But 
one  of  these  days  we  may  be  startled  by  some  grand  discovery,  which 
will  burst  upon  the  world  like  the  light  of  a  new  sun.  Very  sober- 
minded  men  live  in  the  hope  of  seeing  such  things.  One  of  the  most 
successful  farmers  in  this  State  has  declared  his  conviction  that,  be 
fore  long,  manures  will  be  so  concentrated  that  a  man  may  carry  out, 
in  his  pocket-handkerchief,  what  will  enrich  the  land  as  much  as  a 
hundred  wagon-loads  would  now.  This  is  very  extravagant,  no  doubt, 
and  quite  as  foolish  as  it  would  have  been  thirty  years  ago  to  prophesy 
of  railroads,  telegraphs,  or  daguerreotypes.  About  fifteen  years  since 
a  person,  whose  name  I  have  forgotten,  said  that  he  knew  how  any 
plant,  from  the  tallest  forest-tree  to  the  tiniest  blade  of  grass,  could 
be  made  to  grow  four  times  as  fast  as  it  does  naturally,  and  with 
almost  no  additional  trouble.  The  Government  refused  to  buy  his 
secret,  though  the  most  distinguished  men  at  Washington,  to  whom 
it  was  confidentially  revealed,  certified  their  belief  in  it.  If  it  be 
really  true,  it  will  be  heard  of  again.  It  would  be  something  to  raise 
four  crops  a  year  instead  of  one.  Actual  experiments  have  repeatedly 
shown  that  a  plant  may  be  made  to  germinate,  rise  above  the  ground, 
unfold  its  leaves,  and  grow  to  maturity  so  rapidly  that  it  seems  to  the 
beholder  like  magic.  Electricity,  I  believe,  is  the  stimulus  used.  A 
gentleman  in  England  laid  a  wager  that  he  could  raise  a  dish  of  salad, 
fit  for  use,  in  less  than  three  quarters  of  an  hour  from  the  moment 
when  the  seeds  were  deposited  in  the  ground.  He  tried  it,  and  won 
the  bet.  Professor  Espy  has  proved,  in  a  manner  that  admits  of  no 
denial,  that  even  the  weather  may  be  controlled,  and  extensive  rains 
be  produced,  by  artificial  means.  It  has  been  done,  more  than  once, 
in  our  own  State.  In  Florida,  where  the  materials  can  be  easily  had, 


MISCELLANEOUS.  49 

it  is  no  uncommon  thing,  in  a  dry  time,  for  persons  to  get  up  show 
ers  at  an  hour's  notice  on  their  own  private  account.  Perhaps  such 
facts  as  these  are  more  curious  than  important.  I  mention  them 
merely  to  show  that  there  is  something  to  hope  for  in  the  future,  not 
from  these  things  only,  but  others  as  yet  not  dreamed  of  in  your  phi 
losophy.  These  are  but  the  shadows  which  coming  events  have  cast 
before  them.  The  wave  which  will  bear  us  onward  has  not  reached 
us.  But  we  feel  it  swelling  beneath  us,  and  see  its  lofty  crest  in  the 
distance.  In  a  little  while  it  will  lift  us  nearer  to  the  stars  'than  we 
ever  expected  to  be  in  this  life. 

But  how  are  agricultural  societies  to  help  this  cause  ?  I  answer, 
much,  every  way.  No  great  change  has  ever  been  wrought  in  the 
habits  of  any  people  without  a  united  effort.  Political  principles, 
moral  reforms,  religion  itself,  are  spread  only  by  societies.  As  a  bun 
dle  of  sticks  tied  together  is  stronger  than  any  separate  stick,  so  is 
the  united  effort  of  an  organized  body  of  men  more  powerful  than  any 
separate  efforts  which  can  be  made  by  the  individual  members.  When 
you  have  a  building  to  raise,  you  do  not  invite  your  neighbors  to  come 
at  different  times  and  request  each  one  to  take  a  lift  by  himself.  In 
that  way  they  might  break  their  backs  without  doing  you  any  good. 
The  building  will  never  go  up  unless  they  all  lift  together.  If  agri 
culture  is  to  be  elevated,  it  can  only  be  done  by  a  simultaneous  lift. 
At  such  a  raising  you  can  well  afford  to  spend  all  the  time  that  is 
required. 

The  emulation  excited  by  such  a  society,  though  very  important 
and  useful  in  its  effects,  is  the  least  of  its  advantages.  The  county 
societies  are  in  communication  with  the  State  society,  and  with  one 
another.  A  good  thought  might  be  made  to  travel  among  them 
almost  as  fast  as  the  telegraph  could  carry  it,  and  a  humbug  exposed 
by  one  need  never  trouble  the  rest.  All  the  societies  in  the  State  are, 
in  fact,  but  one ;  and  you  have  the  multiplied  strength  of  all  to  aid 
you  in  any  enterprise  you  wish  to  carry.  But  the  great  purpose  they 
serve  is  seen  in  these  periodical  exhibitions.  They  are  the  best  means 
ever  yet  invented  of  collecting  the  evidences  and  satisfying  the  people 
on  the  whole  subject.  The  world  is  full  of  imposture.  No  man  but 
a  fool  would  change  his  mode  of  cultivation,  or  throw  away  his  old 
implements  for  others,  unless  he  knew  that  he  was  doing  so  for  the 
better.  How  can  he  know  unless  he  has  an  opportunity  of  examin 
ing  ?  Seeing  is  believing.  Here,  all  the  successful  experiments  made 
in  the  whole  county  (and  many  of  those  made  elsewhere)  are  annually 
brought  together,  and  subjected  to  public  inspection ;  and  for  each 
one  of  them  you  have  the  sensible  and  true  avouch  of  your  own  eyes. 
It  was  well  said,  in  an  address  delivered  here  about  six  months  ago, 
that  we  come  here  not  to  hear  arguments,  but  to  see  facts,  and  look 
at  demonstrations. 

4 


50  MISCELLANEOUS. 

I  ought  to  remind  you  that  the  State  society  is  not  a  mere  volun 
tary  association  of  private  individuals,  but  a  public  institution  estab 
lished,  protected,  and  guarded  by  law.  Some  of  you  may  not  know 
that  the  profits  of  its  exhibitions  have  already  made  it  rich.  One  of 
its  officers  told  me,  a  few  weeks  ago,  that  it  had  about  forty  thousand 
dollars  in  its  treasury.  Forty  thousand  more  were  probably  added 
last  week  at  Philadelphia.  It  is  proposed  to  invest  this  fund,  or  a 
portion  of  it,  in  the  purchase  of  a  large  farm,  and  to  establish  a  school 
there,  at  which  scientific  and  practical  agriculture  will  be  fully  taught ; 
and  I  presume  without  any  expense  to  the  pupil,  except  the  labor  he 
bestows  on  the  farm.  Half  a  dozen  such  schools  may  be  established 
in  the  course  of  the  next  ten  years,  and  it  will,  perhaps,  be  your  fault 
if  you  do  not  have  one  in  this  part  of  the  State. 

Every  citizen  has  an  interest  in  this  institution — I  mean  the  State 
society.  You  have  a  legal  right  to  be  represented  in  its  councils,  and 
should  see  that  you  are.  I  do  not  know,  or  believe,  that  it  has  yet 
been  touched  by  any  man  who  is  not  perfectly  honest.  Its  active 
members  are  certainly  far  above  suspicion.  But  its  funds  are  swelling 
rapidly,  and  it  seems  very  difficult  in  these  times  to  have  much  treas 
ure  deposited  anywhere  so  safely  that  thieves  will  not  break  through 
and  steal.  Somerset  County — and  every  son  that  claims  her  for  his 
birthplace  or  his  abode  may  speak  it  with  honest  pride — has  never 
produced  a  public  defaulter,  and  her  people  never  knowingly  sanc 
tioned  an  act  of  bad  faith.  From  the  highest  to  the  lowest  of  her 
officers,  every  one,  for  sixty  years,  has  settled  a  clean  account.  In  the 
glory  of  this  enviable  distinction  she  stands  almost  alone.  It  is  fit 
that  such  a  county  should  be  well  represented  wherever  there  is  a  com 
mon  fund  that  needs  watching. 

There  are  some  other  topics  which  ought  not  to  be  overlooked  on 
such  an  occasion  as  this.  But  I  have  already  taxed  your  patience 
more  than  I  intended. 

The  future  of  this  great  country  is  full  of  exciting  hope.  But  it 
depends  entirely  on  the  tillers  of  the  soil  whether  that  hope  shall  be 
realized  or  not.  The  neglect  to  improve  our  agriculture  will  be  fol 
lowed  by  the  decay  of  all  else  that  we  ought  to  cherish  in  morals  and 
government,  as  well  as  in  the  arts.  Mexico  has  gone  all  to  pieces — 
the  property  of  her  people  is  the  spoil  of  robbers,  and  their  liberty  the 
plaything  of  a  tyrant — simply  because  her  agriculture  is  half  a  cent 
ury  behind  the  age.  But  for  this  she  would  have  had  an  independ 
ent  and  stable  government  to-day,  and  might  have  laughed  to  scorn 
the  force  we  sent  against  her  in  the  late  war.  A  well-cultivated  soil 
produces  not  only  grains,  grasses,  and  fruits,  but  another  and  far 
more  precious  crop — men — men  who  know  their  rights,  and  dare 
maintain  them — a  bold,  honest,  and  intelligent  people — the  just  pride 
and  the  sure  defense  of  every  nation. 


MISCELLANEOUS.  51 

On  the  other  hand,  it  startles  the  imagination  to  think  what  we 
may  become  in  a  few  years  if  we  adopt  the  improvements  already 
made,  and  keep  pace  with  those  which  are  yet  to  be.  We  have  the 
grandest  field  to  work  upon  that  was  ever  opened  to  the  industry  of 
man.  A  territory  is  ours  stretching  through  every  variety  of  climate 
and  soil,  from  the  wheat-lands  of  New  England,  lying,  for  half  the 
year,  four  feet  deep  in  snow,  to  the  orange-groves  of  Texas  and  New 
Mexico,  where  winter  never  comes — valleys  of  unbounded  fertility — 
mountains  filled  with  inexhaustible  wealth — lakes  that  spread  out 
with  a  sea-like  expanse — rivers,  which  make  those  of  Europe  seem 
like  brooklets  in  comparison — everything,  in  short,  made  on  a  scale  of 
magnificent  grandeur.  The  child  may  now  be  born  whose  old  age 
will  look  upon  the  American  people  and  see  them  three  hundred  mill 
ions  strong.  Suppose  such  a  population,  doubling  itself  every  twenty- 
two  years  and  a  half — living  under  a  government  of  equal  laws — mov 
ing 'onward  and  upward  with  the  energy  which  freedom  alone  can 
inspire — and  aided  by  the  highest  science  in  making  the  most  of 
their  natural  advantages.  Who  shall  curb  the  career  of  such  a  coun 
try,  or  set  a  limit  to  its  deep-founded  strength  ?  Milton  himself 
never  dreamed  of  a  power  so  boundless,  or  a  people  so  blessed,  even  in 
that  enrapturing  vision  when  he  saw  "a  mighty  and  puissant  nation, 
rousing  herself  like  a  strong  man  after  sleep,  and  shaking  her  invin 
cible  locks,"  or  like  an  eagle  "  mewing  her  mighty  youth,  and  kindling 
her  undazzled  eye  at  the  full  blaze  of  the  midday  beam  ;  purging  and 
unsealing  her  sight  at  the  fountain  itself  of  heavenly  radiance."  The 
man  who,  with  his  senses  open  to  the  truth,  would  thwart  such  a  des 
tiny,  or  refuse  his  aid  to  accomplish  it,  is  a  traitor,  not  to  his  country 
alone,  but  to  the  best  interests  and  highest  hopes  of  the  human  race. 


"RELIGIOUS  LIBERTY."  AN  ADDRESS  TO  THE  PHRE- 
NAKOSMIAN  SOCIETY  OF  PENNSYLVANIA  COLLEGE, 
DELIVERED  AT  THE  ANNUAL  COMMENCEMENT,  SEP- 
TEMBER  17,  1856. 

GENTLEMEN  :  I  will  call  what  I  propose  to  address  you  upon, 
"  Religious  Liberty,"  using  that  designation  for  lack  of  a  better  one. 
I  will  try  to  give  a  reason  why  the  Government  should  be  impartial 
between  persons  professing  different  creeds ;  and  point  out  (briefly 
and  imperfectly,  of  course)  some  of  the  evils  which  might  result  from 
any  exercise  of  the  civil  power  in  matters  of  conscience. 

This  is  a  subject  on  which  we  are  so  unanimously  orthodox,  that  I 
shall  be  in  no  danger  of  shocking  anybody's  prejudices  by  speaking 


52  MISCELLANEOUS. 

the  truth.  If  there  be  any  errors  among  us  (and  on  minor  points  it 
is  possible  there  may  be),  they  will  easily  be  corrected  by  reference  to 
certain  fundamental  principles  which  we  all  acknowledge. 

The  importance  of  forming  just  sentiments  on  this  subject  in  early 
life  can  hardly  be  overestimated.  Without  this  no  educated  man  can 
perform  the  duties  he  owes  to  society.  If  he  misunderstands  the  rela 
tions  existing  between  the  Church  and  the  State,  he  can  not  possibly 
understand  his  own  relations  to  either,  and  the  chances  are  that  he 
will  be  unfaithful  to  both.  History  is  filled  with  examples  of  men 
who  have  belittled  characters  otherwise  very  great,  and  defeated  all 
the  high  purposes  of  their  mission  to  the  world,  simply  by  narrowness 
of  soul  in  this  one  particular. 

"We  habitually  use  certain  words  and  phrases,  imported  from  the 
other  side  of  the  water,  which  are  calculated  to  mislead  us.  One  of 
these  is  the  word  toleration,  as  applied  to  matters  of  faith.  It  implies 
that  we  derive  whatever  religious  freedom  we  have  from  the  conces 
sions  of  the  government ;  that  the  king  in  a  monarchy,  and  the  ma 
jority  of  the  people  in  a  republic,  permit  those  who  differ  from  them 
to  live  unmolested.  This  notion  is  wholly  untrue.  It  is  not  a  politi 
cal  privilege,  but  a  natural,  absolute,  and  indefeasible  right,  which 
human  government  may  protect  but  can  not  either  give  or  withhold. 
If  we  are  permitted  to  enjoy  it,  our  thanks  are  due,  not  to  any  popu 
lar  majority,  but  to  Him  who  gave  us  being. 

14 Deus  nobis  Jiaec  otia fecit" 

Again,  we  hear  it  continually  said,  by  the  wisest  men  among  us, 
that  Christianity  is  part  of  our  common  law.  No  one  has  ever  at 
tempted  to  explain  how  this  is  to  be  understood.  The  law  and  the 
gospel  are,  in  fact,  wholly  dissimilar  in  nature  and  essence,  in  origin, 
operation,  and  object ;  as  different  as  the  purity  of  the  one  must  neces 
sarily  be  from  the  coarse  and  vulgar  machinery  of  the  other  ;  so  differ 
ent,  that  they  never  can  be  mingled  together  without  corrupting  both. 
Christianity,  they  tell  us,  is  a  part  of  our  law ;  that  is,  we  have 
adopted  the  rules  of  the  divine  Lawgiver  to  regulate  our  civil  con 
duct,  but,  finding  them  very  defective,  we  have  made  certain  valuable 
additions.  The  Connecticut  settlers  resolved  that  they  would  live 
according  to  the  laws  of  God,  until  they  had  time  to  make  better.  So 
we  profess  to  have  taken  a  system  formed  in  the  councils  of  Omnis 
cience,  which  came  from  the  hands  of  its  Author  round  and  perfect 
like  a  star ;  filled  with  all  forms  of  moral  beauty,  and  radiant  with 
miracles  of  light ;  and  we  boast  that  we  have  adopted  this  system  with 
such  amendments  as  our  superior  wisdom  has  found  it  necessary  to 
make.  The  proposition  is  blasphemous;  and  every  Christian  man 
should  frown  upon  it. 


MISCELLANEOUS.  53 

We  have  merely  quoted  this  maxim  from  the  English  judges,  and 
gone  on  repeating  it  ever  since,  without  inquiring  whether  it  was  true 
or  false.  It  never  was  true,  even  in  England,  in  any  just  sense  of 
the  word  ;  but  it  was  not  there,  as  it  is  here,  a  dead  letter  ;  for  in  the 
evil  days  of  that  nation  it  had  a  bloody  and  a  terrible  meaning.  What 
the  king  and  Parliament,  and  a  favored  portion  of  the  priesthood, 
chose  to  call  Christianity,  was  a  part  of  their  law  enforced  with  the 
utmost  severity.  But  Christianity,  surrounding  itself  with  the  corpo 
ral  terrors  of  the  fire,  the  gibbet,  and  the  pillory,  was  as  different  as 
possible,  in  its  whole  spirit,  from  the  pure  and  peaceable  system  first 
taught  on  the  shores  of  Galilee.  It  was  readily  recognized  by  those 
persons  whose  interests  it  served,  or  whose  passions  it  gratified  ;  but 
not  by  those  who  suffered  under  it.  The  bishop,  fattening  on  tithes, 
thought  that  law  and  religion  were  convertible  terms  ;  but  the  peasant 
felt  that  they  were  united  in  robbing  labor  of  the  bread  it  had  earned. 
When  Bonner  used  the  law  for  the  destruction  of  heretics,  he  pro 
nounced  it  most  Christian ;  but  the  youngest  of  John  Kogers's  nine 
small  children  could  have  told  him,  by  instinct,  that  it  was  devilish. 
Cranmer,  while  he  was  burning  his  enemies,  thought  that  English  law 
and  true  religion  meant  one  and  the  same  thing;  but  he  probably 
changed  his  opinion  when  it  came  his  own  turn  to  be  roasted  under 
that  same  law.  The  maxim  that  Christianity  is  part  of  the  law  was 
enunciated  by  Jeffreys,  and  other  judges  like  him,  with  savage  exulta 
tion,  and  with  its  sanction  they  rolled  their  garments  in  blood ;  but 
Bunyan,  confined  fourteen  years  in  prison,  or  Baxter,  whipped  at  the 
cart's  tail,  could  see  in  such  law  nothing  like  the  Christianity  of  the 
"Pilgrim's  Progress,"  or  the  "Saint's  Rest." 

The  manifest  object  of  the  men  who  framed  the  institutions  of 
this  country,  was  to  have  a  State  without  religion,  and  a  Church  with 
out  politics — that  is  to  say,  they  meant  that  one  should  never  be  used 
as  an  engine  for  any  purpose  of  th&  other,  and  that  no  man's  rights  in 
one  should  be  tested  by  his  opinions  about  the  other.  As  the  Church 
takes  no  note  of  men's  political  differences,  so  the  State  looks  with 
equal  eye  on  all 'the  modes  of  religious  fajth.  The  Church  may  give 
her  preferment  to  a  Tory,  and  the  State  may  be  served  by  a  heretic. 
Our  fathers  seem  to  have  been  perfectly  sincere  in  their  belief  that  the 
members  of  the  Church  would  be  more  patriotic,  and  the  citizens  of 
the  State  more  religious,  by  keeping  their  respective  functions  entirely 
separate.  For  that  reason  they  built  up  a  wall  of  complete  and  perfect 
partition  between  the  two. 

Their  theory  was  one  of  absolute  and  unlimited  freedom — a  free 
dom  "as  broad  and  general  as  the  casing  air."  It  was  their  aim  to 
take  away  every  possible  pretense  which  could  be  made  by  any  human 
being  to  erect  himself  into  a  tribunal  for  the  purpose  of  deciding  mat 
ters  supposed  to  be  at  issue  between  his  fellow-creatures  and  their 


54:  MISCELLANEOUS. 

God.  They  thought  they  had  succeeded  in  guarding  the  rights  of 
conscience  so  that  no  majority  would  ever  invade  them.  They  .gave  to 
Bigotry  no  possible  chance  for  thrusting  herself  into  civil  affairs  with 
out  doing  so  in  flat  rebellion  to  the  Constitution. 

This  liberty  to  think  and  do  what  they  please  extends  to  all 
manner  of  wrong-headed  people,  so  long  as  they  do  not  interfere  with 
the  rights  of  others.  The  widest  departure  from  the  faith  of  the 
majority  is  permitted  as  fully  as  the  most  trifling  difference  of  opinion. 
The  Baptist  may  safely  confess  his  belief  in  immersion,  and  the  Quaker, 
with  equal  impunity,  may  disregard  all  outward  forms.  The  Catholic 
may  celebrate  the  mass,  the  Jew  may  eat  the  passover,  and  even  the 
Mohammedan  may  turn  his  face  toward  Mecca  when  he  prays.  Some 
very  good  men  are  disgusted  at  a  liberality  so  excessive  that  it  stands 
neutral  between  the  purest  truth  and  the  grossest  error.  Their  right 
eous  souls  are  vexed  from  day  to  day  by  the  fact  that  their  Govern 
ment  is  such  a  Gallic  as  to  "care  for  none  of  these  things."  If  it  be 
wrong,  it  can  not  now  be  mended.  For  those  who  are  not  content 
with  it  there  is  no  help,  except  in  emigrating  to  some  place  where 
persecution  is  not  forbidden;  and,  even  then,  their  comfort  may 
depend  very  much  on  whether  they  are  permitted  to  inflict  the  perse 
cution,  or  compelled  to  suffer  it.  A  British  officer,  just  returned  from 
India,  was  asked  what  he  thought  of  lion-hunting.  "The  sport," 
said  he,  "is  excellent  as  long  as  you  are  hunting  the  lion  ;  but  it  gets 
rather  disagreeable  when  the  lion  begins  to  hunt  you ." 

Heterodox  people  in  this  country  are  protected  not  only  from 
burning,  hanging,  maiming,  and  imprisonment,  but  it  is  provided 
that  even  political  disabilities  shall  not  be  imposed  on  them  for  their 
erroneous  faith.  One  sect  shall  have  no  advantage  whatever  over 
another.  You  shall  not  reward  the  true  believers  by  giving  them  all 
the  public  employments,  and  punish  heretics  by  a  total  exclusion. 
There  shall  be  no  religious  test  as  *  a  qualification  for  office.  Make 
what  other  test  you  please.  Exclude  a  man,  if  you  like,  for  his 
political  sentiments,  or  his  moral  conduct,  for  his  wealth  or  his  pov 
erty,  for  his  youth  or  his  age  ;  make  war  on  him  for  the  color  of  his 
hair,  the  length  of  his  legs,  or  the  shape  of  his  nose.  But  let  him 
alone  about  his  religion  :  that  is  consecrated  ground  ;  that  is  a  point 
on  which  the  Constitution  has  refused  to  trust  you  with  one  particle 
of  power ;  and  wisely,  too,  for  mortal  men  are  not  fit  to  be  trusted 
with  such  power  ;  they  have  never  had  it  without  abusing  it  grossly. 

These  obligations  can  not  be  judicially  enforced.  A  private  citi 
zen  can  not  be  indicted  for  violating  the  Constitution  ;  perhaps  not 
even  for  a  conspiracy  to  violate  it.  If  he  swears  to  support  it,  the 
oath  is  promissory,  and  therefore  to  break  it  is  not  legal  perjury.  It 
is  only  for  gross,  willful,  and  dishonest  abuse  of  power  that  even  a 
public  officer  can  be  impeached.  The  penalties  of  treason  are  never 


MISCELLANEOUS.  55 

incurred  except  by  those  who  levy  actual  war  against  the  Government, 
or  adhere  to  a  foreign  enemy.  Our  fundamental  law  is  a  series  of 
rules  without  any  sanction,  except  in  the  forum  of  the  conscience. 
Those  citizens,  therefore  (if  there  be  any  such),  who  have  no  con 
science,  no  sense  of  duty,  and  no  shame,  may  disregard  it  as  much  as 
they  please,  without  any  fear  of  the  penitentiary  or  the  halter.  But 
the  fear  of  punishment  is  not  necessary  to  make  a  true  man  faithful 
to  the  Constitution  that  guards  his  rights,  and,  if  he  swears  to  sup 
port  it,  he  will  keep  his  oath  at  all  events. 

If  you  should  happen  to  be  convinced  (as  you  probably  never  will 
be,  for  no  man  can  prove  it)  that  this  prohibition  of  a  religious  test 
is  addressed  only  to  the  Legislature,  and  not  to  the  people  or  their 
appointing  agents,  the  question  will  then  arise,  Whether  it  is  right  to 
evade  the  command  by  any  sort  of  indirection  ?  There  'are  men— 
perhaps  not  so  many  as  there  were  a  short  time  ago — who  consider  it 
altogether  unlawful  to  effect  a  prohibited  purpose,  even  by  means 
which  are  not  specifically  forbidden.  It  is  impossible  to  regard  that 
morality  as  sound  which  would  trifle  and  palter  with  the  great  prin 
ciple  embodied  in  a  fundamental  law  whenever  it  can  be  done  without 
violating  the  letter.  An  American  citizen,  who  is  not  willing  to  sup 
port  his  government,  as  a  sincere  and  earnest  man  supports  what  he 
loves  and  believes  in,  should  renounce  his  allegiance,  and  wage  against 
it  a  war  of  open  hostility.  It  is  better  and  braver  to  batter  down  the 
wall  than  to  introduce  the  enemy  by  means  of  a  wooden  horse.  Dolon 
was  no  friend  of  Troy  any  more  than  Ajax  or  Achilles  ;  and  you  will 
agree  with  me  in  saying  that  he  was  an  infinitely  meaner  man.  When 
the  foe  reaches  your  citadel,  no  matter  how  he  gets  there,  you  may 
sing  "Fuit  Ilium!"  for  the  glories  of  your  empire  will  have  passed 
away. 

The  establishment  of  religious  freedom  in  America  was,  to  some 
extent,  a  necessary  consequence  of  the  time  and  circumstances  in 
which  the  country  was  settled.  All  the  colonies  were  founded  during 
the  seventeenth  century,  and  that  was  precisely  the  time  when  perse 
cution  was  committing  its  most  frightful  ravages  in  Europe.  The 
savage  cruelty  with  which  the  contest  of  opinion  was  carried  on  by  all 
parties,  the  judicial  murders  and  the  wholesale  slaughters  which 
marked  the  pathway  of  political  power,  are  the  saddest  pages  in  the 
history  of  the  human  race.  Bigotry  rode  rampant  and  red  over  all 
lands.  In  the  fairest  portions  of  France  the  whole  population  was 
suddenly  and  treacherously  put  to  death  or  scattered  abroad  in  wild 
dismay,  like  flocks  of  sheep  attacked  by  the  wolves.  Philip  II,  in  a 
decree  of  three  lines,  pronounced  the  doom  of  death  on  three  millions 
of  innocent  persons  in  Holland  ;  and  that  doom  was  executed  with 
remorseless  rigor  as  rapidly  as  the  Duke  of  Alva,  with  a  large  army, 
could  execute  it,  in  a  country  already  subjugated  and  helpless.  The 


56  MISCELLANEOUS. 

fields  of  Germany  were  saturated  with  blood  ;  every  one  of  her  great 
cities  was  a  burned  and  blackened  waste ;  two  thirds  of  her  people, 
men,  women,  and  children,  fell  beneath  the  scourge.  The  best  and 
bravest  of  Ireland  were  murdered  three  times  over,  and  nearly  every 
acre  in  the  island  was  confiscated  as  often.  The  adherents  of  the  two 
leading  forms  of  Christianity  were  not  the  only  parties  to  the  strife. 
In  England  and  Scotland,  as  well  as  in  Germany  and  Switzerland,  the 
people  lashed  themselves  into  a  frenzy  on  still  narrower  questions. 
Prelatists  and  Presbyterians,  Baptists,  Covenanters,  and  Muggletoni- 
ans,  were  convulsing  the  public  mind  with  disputes  between  them 
selves.  They  committed  on  one  another  every  form  of  legalized  mur 
der,  and  all  varieties  of  atrocious  cruelty.  Burning,  beheading,  and 
hanging,  as  well  as  imprisonment,  branding,  and  maiming,  were  in 
universal  fashion.  Men  of  the  most  fervent  piety,  the  highest  talents, 
and  the  most  blameless  lives,  suffered  inflictions  so  cruel  and  so  igno 
minious,  that,  even  at  this  distance  of  time,  they  can  not  be  thought 
of  without  unspeakable  indignation. 

It  was  from  these  scenes  of  terror,  conflagration,  blood,  and  tears, 
that  the  earliest  settlers  of  America  fled.  Most  of  them  had  suffered 
more  or  less  for  their  faith,  and  all  of  them  ought  to  have  known  that 
justice  and  sound  policy  were  both  in  favor  of  free  conscience.  But 
this  proposition,  plain  as  it  seems  to  us,  was  then  very  generally  repu 
diated.  The  intellect,  indeed,  comprehends  it  readily  enough,  but  in 
all  ages  the  "heart  of  man  has  learned  it  slowly  and  reluctantly.  It  is, 
therefore,  no  matter  of  surprise  that  some  of  the  colonial  rulers  were 
almost  as  blind  and  ferocious  as  the  oppressors  they  had  left  behind. 
But  among  them  were  three  immortal  names  that  will  be  venerated  as 
long  as  the  earth  contains  one  friend  of  human  liberty.  These  were 
Cecilius  Calvert,  William  Penn,  and  Eoger  Williams — a  Catholic,  a 
Quaker,  and  a  Baptist.  There  was  no  prince  or  statesman  in  all 
Europe  that  was  worthy  to  stoop  down  and  unloose  the  latchet  of 
their  shoes.  Theirs  was  the  greatest  improvement  in  the  science  of 
government  that  was  ever  made.  It  was  a  new  era  of  peace  on  earth 
and  good-will  to  man,  fit  to  be  celebrated  on  the  harps  of  angels. 
You  may  talk  of  other  compromises  ;  but  the  greatest  compromise  of 
all  was  that  by  which  the  fighting  sects  agreed  to  disarm  and  cease 
their  barbarous  hostility.  The  great  men  I  have  named  were  not  only 
our  benefactors,  but  the  profoundest  gratitude  is  due  to  their  memory 
from  the  whole  human  race.  Their  example  has  shamed  the  civilized 
world,  if  not  into  freedom,  at  least  into  peace. 

Lord  Baltimore  was,  in  some  respects,  a  most  fortunate  man.  He 
was  especially  happy  in  having  a  father  to  lay  out  his  great  work,  and 
a  son  of  rare  ability  to  carry  it  on.  To  have  been  the  author  of  the 
first  statute  that  ever  was  passed  to  secure  entire  freedom  of  con 
science,  gives  him  the  most  enviable  place  in  the  world's  history.  His 


MISCELLANEOUS.  57 

high  qualities  of  mind  and  heart  made  him  worthy  of  that  pre-eminent 
distinction,  as  a  single  incident  will  show.  A  successful  rebellion,  or 
ganized  by  those  whom  he  had  sheltered  from  the  persecution  of  one 
another,  deprived  him  for  a  time  of  his  power,  and  the  first  thing  they 
did  was  to  persecute  the  church  to  which  he  himself  belonged.  When 
he  recovered  his  authority  he  must  have  been  tempted  to  retaliate. 
But  with  a  greatness  of  mind  which  never  deserted  him,  and  with  a 
fidelity  to  his  own  convictions  which  nothing  could  shake,  he  reorgan 
ized  his  government  upon  its  former  basis  of  equal  protection  to  all. 

The  last  and  the  greatest  of  English  historians — one  whose  skill  in 
praising  what  he  admires  and  depreciating  what  he  dislikes  is  unsur 
passed — has  turned  his  powerful  magnifying-glass  upon  William  Penn; 
and  he  announces  that  he  has  discovered  on  that  "bright  particular 
star  "  some  spots  never  seen  before.  It  is  said  that  a  famous  astrono 
mer,  once  upon  a  time,  surprised  the  scientific  world  by  declaring  that 
he  had  discerned  an  elephant  in  the  moon  ;  but,  upon  close  examina 
tion,  it  was  ascertained  that  the  elephant  supposed  to  be  in  the  moon 
was  only  a  fly  in  the  philosopher's  telescope.  It  may  be  that  there 
was  a  fly  in  the  instrument  through  which  Mr.  Macaulay  looked  at 
the  character  of  Penn  ;  and  it  is  shrewdly  suspected  that  some  such 
insect  might  have  crept  in  there  about  the  time  when  the  Quakers 
voted  against  him  at  the  Edinburgh  election.  Be  that  as  it  may,  this 
assault  upon  Penn's  fame  comes  too  late  in  the  day.  The  judgment 
of  the  world  has  been  pronounced  upon  him  long  ago  ;  and  his  malign- 
ers  have  no  right  to  a  new  trial  now.  It  is  in  vain  to  say  that  the 
decision  was  based  on  defective  evidence.  No  man  of  his  time  was 
better  known.  From  his  early  youth  to  his  old  age  he  was  a  man  of 
mark,  and  lived  constantly  in  the  eye  of  the  public,  surrounded  by 
enemies  ever  ready  to  put  the  worst  construction  upon  his  conduct. 
He  went  through  the  furnace  without  the  smell  of  fire  on  his  gar 
ments,  and  left  behind  him  a  character  for  moral  virtue  on  which 
malice  itself  could  fix  no  stain.  In  the  bloom  of  his  youth  ;  with  all 
the  freshness  of  health  and  hope  upon  his  heart ;  when  worldly  ambi 
tion  was  spreading  its  most  seductive  allurements  around  him,  he  gave 
up  rank,  fortune,  friends,  and  became  an  outcast  from  the  house  of 
his  father  for  the  sake  of  communion  with  a  despised  and  persecuted 
sect.  In  obedience  to  his  conscience,  and  without  other  possible  mo 
tive,  he  suffered  insult  and  scorn  and  imprisonment  with  a  fortitude 
that  would  have  honored  a  Christian  martyr  in  any  age.  That  he  was 
a  man  of  consummate  ability  is  proved  by  all  his  public  acts,  speeches, 
and  writings.  Even  the  words  which  are  reported  to  have  fallen  from 
him  in  private  conversation  were  so  fitly  spoken  that  they  are  "like 
apples  of  gold  set  in  pictures  of  silver."  With  one  consent  the  wise 
and  the  learned  of  all  nations  have  agreed  that,  as  a  lawgiver,  he  was 
the  greatest  that  ever  founded  a  state  in  ancient  or  modern  times. 


58  MISCELLANEOUS. 

He  was  not  the  very  foremost,  but  he  was  among  the  foremost,  to  dis 
claim  all  power  of  coercion  over  the  conscience.  This  alone,  if  he  had 
done  nothing  else,  would  have  marked  the  tallness  of  his  intellectual 
stature ;  for,  when  the  light  of  a  new  truth  is  dawning  upon  the 
world,  its  earliest  rays  are  always  shed  upon  the  loftiest  minds.  He 
not  only  received  this  truth  into  his  own  heart,  but  he  devoted  him 
self  with  tireless  energy  to  the  propagation  of  it.  Long  before  he 
turned  his  attention  to  the  New  World  he  traveled  through  Germany 
and  Switzerland,  scattering  the  seeds  broadcast  wherever  he  went. 
They  fell  upon  good  ground,  and  in  time  bore  an  abundant  harvest. 
His  visit  there  was  long  and  vividly  remembered  by  a  people  who  were 
sick  of  strife,  and  longed  for  the  peace  which  an  impartial  government 
alone  could  give.  Years  afterward,  when  they  heard  that  the  young 
Quaker,  who  had  so  felicitously  explained  the  principles  of  civil  and 
religious  freedom,  was  become  a  sort  of  king  beyond  the  Atlantic,  an 
intense  desire  to  join  him  pervaded  all  classes  and  sects.  They  rushed 
to  the  seaports  by  thousands  ;  there  was  not  shipping  enough  to  carry 
them  away  ;  Continental  Europe  had  never  seen  such  an  exodus  before. 
The  emigration  from  England  and  Ireland  was  almost  equally  great. 
Attracted  by  his  fame,  men  came  from  all  parts  of  the  world,  and 
came  in  such  numbers  that  in  fifteen  years  Pennsylvania  was  the  rich 
est  and  most  populous  of  all  the  colonies,  though  some  of  the  rest 
were  nearly  a  hundred  years  older.  Under  the  beneficent  influence  of 
Penn's  institutions  the  various  races,  differing  in  religion,  manners, 
and  language,  were  blended  into  one  homogeneous  mass  ;  and  their 
mingled  blood  now  flows  in  the  veins  of  a  population — let  me  say  it 
proudly,  for  I  can  say  it  without  the  least  fear  of  contradiction — a 
population  better  and  wiser,  truer-hearted,  and  clearer-minded,  than 
any  other  that  lives  on  the  surface  of  this  great  globe.  Si  monumen- 
tum  queris,  circumspice.  There  is  his  monument — look  around  if  you 
desire  to  see  it.  His  name  is  inscribed  on  this  mighty  Commonwealth. 
Day  by  day  it  rises  higher  and  stands  more  firmly  on  its  broad  founda 
tion — and  there  it  will  stand  forever — "  Sacred  to  the  memory  of  Will 
iam  Penn."  It  is  not  possible  that  such  a  man  can  need  any  defense 
against  one  who  charges  him  with  a  want  of  common  integrity.  If 
there  be  any  character  besides  that  of  Washington  which  is  beyond 
the  reach  of  so  paltry  a  slander,  it  is  Penn's.  That  he  was  not  habit 
ually  honest  and  upright  is  an  historical  proposition  as  absurd  as  it 
would  be  to  say  that  Julius  Caesar  was  a  coward,  that  Virgil  had  no 
poetic  genius,  or  that  Cicero  could  not  speak  Latin.  Nay,  he  was 
something  more  than  an  honest  man  ;  he  was  a  philanthropist,  who 
gave  all  he  had  and  all  he  was — time,  talents,  and  fortune — to  the  ser 
vice  of  mankind.  The  heir  of  a  large  estate,  the'  founder  of  the  great 
est  city  in  North  America,  the  sole  owner  of  more  than  sixty  thousand 
square  miles  of  land,  he  never  spent  a  shilling  in  any  vicious  extrava- 


MISCELLANEOUS.  59 

gance,  but  his  large-handed  charities  so  exhausted  his  income  that,  in 
his  old  age,  he  was  imprisoned  for  debt.  He  had  the  unlimited  con 
fidence  of  a  monarch  whose  favor  an  unscrupulous  man  would  have 
coined  into  uncounted  heaps  of  gold  ;  but  he  left  the  court  with  his 
hands  empty;  and  whosoever  says  they  were  not  clean  as  well  as 
empty,  knows  not  whereof  he  affirms.  I  say  again  that  all  attacks 
on  such  a  character  are  vain,  and  all  defense  unnecessary.  The  set 
tled,  universal  feeling  of  reverence  for  his  memory  will  not  be  dis 
turbed,  or  one  whit  diminished,  by  a  doubtful  accusation,  fished 
up  from  the  oblivion  of  a  hundred  and  fifty  years,  no  matter  how 
attractive  the  rhetoric  in  which  the  writer  of  a  partisan  history  may 
clothe  it. 

The  other  man  of  that  illustrious  triumvirate  is  also  entitled  to 
your  special  notice.  Roger  Williams  was  a  hero  in  the  highest  sense 
of  that  much-abused  word.  Of  all  the  men  that  ever  mingled  in  the 
good  fight  for  freedom  of  opinion,  he  carried  the  most  glittering 
weapon,  fought  the  hardest  battle,  and  won  the  most  brilliant  tri 
umph.  Single-handed  and  alone,  he  strove  against  a  tumultuous 
throng  of  enemies,  who  pressed  upon  him  in  front,  and  flank,  and 
rear.  And  never  yet  was  hero  so  magnanimous  in  victory,  or  in  ad 
versity  so  calmly  steadfast  to  his  cause.  His  character  is  invested 
with  that  peculiar  interest  which  we  all  feel  in  a  great  injured  man, 
whose  merits  are  the  glory,  while  the  wrongs  he  suffered  are  the 
shame,  of  the  times  he  lived  in.  His  intellectual  vision  saw  the  truth 
at  a  glance,  and,  his  honest  heart  accepting  it  without  hesitation, 
pushed  it  at  once  to  its  ultimate  consequences.  His  eloquence  was 
remarkable  for  its  clearness  and  fervor ;  he  had  a  steadiness  of  pur 
pose  which  opposition  only  made  firmer,  and  no  dangers  that  ever 
thickened  around  him  could  tame  the  audacity  of  his  courage.  Thus 
gifted,  he  came  to  Massachusetts  in  the  vigor  of  his  early  manhood, 
and  immediately  took  up  the  defense  of  what  he  called  the  "  sanctity 
of  conscience."  It  would  have  been  a  safer  employment  to  denounce 
Mohammedanism  in  any  part  of  Turkey.  Mary  Fisher  made  a  fair 
trial  of  both.  She  went  to  Boston  and  she  went  to  Constantinople. 
She  publicly  administered  to  the  Sultan  and  to  the  elders  of  the  Puri 
tan  church  the  rebuke  which,  in  her  opinion,  was  needed  by  each ; 
and  her  report  of  the  comparative  treatment  she  received  gives  a 
decided  preference  to  the  Turks.  The  intrepid  spirit  of  Williams, 
however,  was  not  to  be  quelled  ;  his  denunciation  of  tyranny  became 
more  unsparing  in  proportion  as  the  threats  against  himself  grew 
louder.  Such  a  man  could  not  fail  to  have  friends  among  the  people  ; 
but  those  who  wielded  the  political  power  and  the  ecclesiastical  influ 
ence  of  the  colony  were  against  him  in  a  compact  body,  and  hated 
him  with  that  bitter  intensity  of  hatred  which  religious  bigotry  alone 
can  inspire.  At  first  they  tried  him  in  debate,  but  that  was  soon 


60  MISCELLANEOUS. 

ended  ;  for  his  irresistible  logic  went  through  and  through  their  flimsy 
sophistry,  as  a  battering-ram  would  go  through  a  wall  of  pasteboard. 
It  was  not  at  all  safe  to  silence  him  as  they  silenced  Robinson,  Mary 
Dyer,  and  others,  by  hanging  him  ;  for  his  character  was  known  and 
honored,  and 

"...  his  virtues 

Would  plead  like  angels,  trumpet-tongued,  against 

The  deep  damnation  of  his  taking  off." 

But  they  anxiously  took  counsel  among  themselves  how  they  might 
destroy  him  without  incurring  a  responsibility  too  great.  They  made 
a  law  on  purpose  to  catch  him  :  Whosoever  would  deny  their  right  to 
punish  men  for  having  a  creed  different  from  theirs  should  be  ban 
ished.  They  disfranchised  a  town  for  giving  him  shelter ;  they  con 
fiscated  the  lands  of  a  congregation  for  hearing  him  preach ;  they 
maligned  his  character  in  every  possible  way ;  they  so  poisoned  the 
mind  of  his  own  wife  that  even  she  for  a  time  deserted  him.  Then — 
when  he  was  all  alone — when  every  one  who  should  have  aided  him 
was  cowed  into  submission — when  no  friend  dared  to  stand  up  beside 
him — when  his  life's  life  had  been  lied  away— then  they  set  their 
human  bloodhounds  upon  him,  and  drove  him  forth  to  perish  in  the 
wilderness.  For  fourteen  weeks,  in  the  bitter  depth  of  winter,  he 
knew  not,  as  he  himself  declared,  "what  bread  or  bed  did  mean." 
But  the  Indians  remembered  him  well  as  the  bold,  just  man,  who  had 
more  than  once  interposed  himself  between  them  and  the  wrongs 
meditated  against  them  by  the  whites.  His  quick  intellect  had 
already  caught  their  language,  and  he  spoke  it  with  a  fluency  which 
surprised  and  flattered  them.  Miantonomoh,  the  chief  of  the  Narra- 
gansetts,  received  him  with  open  arms,  loved  him  like  a  brother  to 
the  last,  and  gave  him  a  large  tract  of  his  country,  including  a  beauti 
ful  island  in  the  sea.  There  he  became  the  founder  and  lawgiver  of  a 
new  province,  which  was,  in  reality  and  in  truth,  an  asylum  for  all 
who  were  oppressed. 

It  is  impossible  to  give  any  just  idea  of  this  singular  man  (or  his 
opponents  either)  without  calling  your  attention  to  a  subsequent  fact. 
Not  long  afterward,  Massachusetts  was  threatened  by  a  danger  which 
appalled  the  bravest  of  her  defenders.  The  Indians  were  burning  for 
vengeance.  All  the  neighboring  tribes,  and  those  who  dwelt  in  the 
far  interior,  were  forming  a  league  to  exterminate  the  colony  by  an 
indiscriminate  massacre  of  all  ages  and  sexes.  On  the  day  when  this 
terrible  truth  was  realized  at  Boston,  the  name  of  Roger  Williams 
trembled  upon  every  lip.  His  influence  could  dissolve  the  league ; 
except  him  there  was  no  power  on  earth  to  save  them.  But  would  he 
do  it  ?  Strange  to  say,  they  never  doubted  for  a  moment  that  he 
would  fly  to  their  rescue.  They  had  basely  injured  him ;  but  they 


MISCELLANEOUS.  61 

knew  that  Christianity  had  lifted  him  far  above  the  vulgar  feeling  of 
revenge.  It  was  perilous,  too,  to  rush  alone  between  the  enraged 
savages  and  the  victims  of  their  wild  wrath  ;  but  in  that  noble  nature 
there  was  no  taint  of  selfishness — no  touch  of  craven  fear.  The  breath 
less  messenger  of  the  Massachusetts  authorities  reached  him  at  his 
island  home  in  a  stormy  winter's  night.  He  heard  the  imploring 
appeal,  and,  without  a  word  of  reproach  for  all  they  had  made  him 
suffer,  and  without  a  moment  of  unnecessary  delay,  he  girded  up  his 
loins  and  started  on  his  dangerous  mission.  He  reached  the  main 
land  in  a  crazy  boat,  and  thence  he  bent  his  steps  through  the  track 
less  forest  to  the  camp  of  the  Narragansetts,  where  the  hostile  chiefs 
had  already  assembled.  They  were  fairly  infuriated  by  his  presence. 
His  throat  was  not  safe  from  their  knives  for  a  moment,  protected 
though  he  was  by  the  influence  of  Miantonomoh.  Nevertheless,  this 
bold  apostle  of  brotherhood  and  peace  stood  up  with  his  life  in  his 
hand,  surrounded  by  raging  savages,  and,  for  three  successive  days, 
pleaded  the  cause  of  their  enemies  and  his  own  with  all  the  pathetic 
eloquence  of  which  he  was  so  great  a  master.  He  prevailed  at  last ; 
the  league  was  dissolved  ;  and  Massachusetts  was  saved. 

It  would  be  unjust  to  the  memory  of  the  "Pilgrim  Fathers"  not 
to  mention  what  gratitude  they  bestowed  on  their  illustrious  benefac 
tor.  They  showed  it  not  in  words  but  in  actions.  Somehow  they 
got  hold  of  his  fidus  Achates — his  devoted  and  faithful  friend  Mian 
tonomoh.  Him  they  delivered  up  to  a  rival  chief  with  the  distinct 
and  clear  understanding  that  he  was  to  be  basely  and  brutally  mur 
dered  ;  and  the  deed  was  done  before  the  eyes  of  their  commissioners. 
A  confederation  of  the  New  England  colonies  was  formed  for  mutual 
protection  against  the  savages,  but  they  refused  to  admit  Ehode 
Island,  and  thus  did  all  that  in  them  lay  to  expose  Williams  and  his 
people  to  that  very  fate  from  which  he  had  saved  them  by  an  act  of 
heroic  magnanimity,  such  as  no  other  man  in  millions  would  have 
performed.  They  tried  to  extend  their  tyrannical  jurisdiction  over 
the  free  conscience  of  his  province,  and,  to  prevent  it,  he  was  com 
pelled  to  cross  the  Atlantic  and  get  a  charter  from  the  Parliament. 
When  he  returned  he  landed  at  Boston ;  and,  though  the  hearts  of 
the  common  people  leaped  to  the  greeting  of  their  great  deliverer, 
his  old  persecutors  scowled  on  him  with  all  the  malignity  of  former 
days. 

Such  was  Eoger  Williams.  How  grandly  his  humane  and  gener 
ous  spirit  contrasts  with  his  contemporaries  of  the  opposite  school, 
with  their  sour  tempers  and  their  evil  passions  nursed  by  habits  of 
persecution  !  History  has  painted  no  picture  of  manly  virtue  which 
stands  out  in  such  clear  and  beautiful  relief  from  the  gloomy  back 
ground  of  a  dark  and  bigoted  age.  The  American  who  can  hear  his 
name  without  emotions  of  respect  and  gratitude,  like  the  man 


62  MISCELLANEOUS. 

"...  who  hath  DO  music  in  himself, 
Is  fit  for  treason,  stratagem,  and  spoils: 
Let  no  such  man  be  trusted." 

The  principles  of  Williams,  Calvert,  and  Penn  are  necessary,  not 
less  to  the  prosperity  of  the  Church,  than  to  the  peace  and  safety  of 
the  State.  The  man  who  would  enforce  religious  truth  by  penalties 
of  any  kind,  is  not  only  cruel  and  inhuman,  but  he  is  "a  fool  as  gross 
as  ever  ignorance  made  drunk."  He  descends  from  his  vantage- 
ground,  disgraces  his  cause  as  well  as  himself,  and  makes  his  adver 
saries  hug  their  errors  with  more  affection  than  ever.  The  logic  of 
blood  is  just  as  powerful  for  the  wrong  as  it  is  for  the  right,  and 
truth,  in  such  a  contest,  is  disarmed  of  her  intrinsic  and  natural 
power.  By  a  thousand  arguments  you  can  show  that  Christ  was  God, 
and  Mohammed  an  impostor ;  but  the  rack  will  prove  as  much  for 
one  as  the  other.  It  is  possible  to  convert  the  most  obstinate  misbe 
liever  by  an  appeal  to  his  reason,  but  what  progress  will  you  make  by 
burning  his  church  ? 

The  experiment  has  been  thoroughly  tried  both  ways,  with  what 
success  you  know  very  well.  When  the  Church  had  no  sword  but 
the  sword  of  the  Spirit ;  when  her  disciples  knew  nothing  of  persecu 
tion,  except  what  they  suffered,  her  influence  was  irresistible.  But 
on  the  evil  day  when  she  joined  herself  to  political  power,  her  "  invin 
cible  locks"  were  shorn  away,  and  she  was  compassed  round  with 
danger  and  darkness.  Christianity,  like  the  oak,  will  thrive  only  in 
the  open  air.  It  grows  and  flourishes,  and  strikes  its  roots  deep  into 
the  earth,  and  stretches  its  branches  to  the  skies,  and  spreads  them 
over  the  plain,  while  the  free  winds  are  permitted  to  play  among  its 
leaves,  and  the  sunshine  of  heaven  to  settle  on  its  head.  But  it  never 
was  meant  for  a  hot-house  plant.  It  withers  and  dies  when  placed 
under  the  forcing-glass  and  exposed  to  the  stimulus  of  an  artificial 
heat. 

The  Author  of  the  Christian  system  has  lent  no  sanction  to  any 
deed  of  hatred  or  violence  which  has  been  done  in  his  name.  When 
the  prophet  Elijah  came  out  from  the  cave  and  stood  on  the  mount 
ain,  there  passed  in  succession  an  earthquake,  a  fire,  and  a  mighty 
wind,  but  the  Lord  was  not  in  either.  After  these  had  gone  by,  there 
came  a  still,  small  voice,  and  Elijah  knew  that  the  Lord  was  there. 
In  the  history  of  the  Christian  world  we  have  seen  the  earthquake, 
produced  by  the  encounter  of  nation  with  nation,  the  fire  of  legal 
persecution,  and  the  windy  storm  of  political  disputation.  It  needs 
no  inspired  prophet  to  tell  us  that  in  none  of  these  was  there  any  sign 
of  His  presence,  who  rules  in  justice  and  mercy.  If  he  is  not  heard  in 
the  still,  small  voice  that  speaks  to  the  reason  and  the  conscience, 
then  are  we  without  God  in  the  world,  and  consequently  without 
hope. 


MISCELLANEOUS.  63 

Let  us  not  be  self-complacent  enough  to  suppose  that  we  are  in  no 
danger  of  being  tempted  to  repeat  what  others  have  done  before  us. 
This  age  is  wiser  than  former  times.  We  know  more,  but  I  am  not 
sure  that  we  feel  any  better.  American,  Eepublican,  Democratic 
nature,  is  still  human  nature,  and  has  its  full  share  of  old  Adam. 
Everywhere  and  at  all  times  the  spirit  of  persecution  is  the  most  in 
sidious  as  well  as  the  most  deadly  foe  to  public  tranquillity,  safety,  and 
peace.  It  may  steal  imperceptibly  over  the  popular  heart  at  any  mo 
ment,  for  its  approaches  are  always  noiseless  and  rapid.  There  is 
nothing  less  alarming  in  infancy,  nor  nothing  more  terrible  in  ma 
turity.  Its  first  whisperings  are  as  gentle  and  soft  as  the  summer 
breeze,  but  its  murmurs  grow  louder  and  stronger  and  wilder,  until 
you  have  it  in  the  crash  and  roar  of  the  tempest.  The  whole  heavens 
may  be  darkened  to-morrow  by  a  cloud  which  to-day  is  not  bigger 
than  a  man's  hand. 

Facilis  descensus  Averni.  If  our  judgments  could  once  be  ob 
scured  by  a  strong  feeling  of  hatred  and  contempt  for  those  who  pro 
fess  a  false  faith,  how  easy  might  it  be  to  convince  us  that  there  is 
nothing  either  legally  or  morally  wrong  in  using  our  numerical  power 
to  strip  them  of  their  share  in  the  civil  government !  We  do  that, 
and  then  come  slander  and  insult  of  the  injured  party,  by  way  of 
excuse  for  the  injury.  Resistance— perhaps  retaliation  in  some  form 
or  another — would  almost  certainly  follow ;  and  this  would  be  an 
excuse  for  still  further  inflictions.  The  combat  deepens  every  hour ; 
our  hatred  grows  stronger  and  more  intense  at  every  stage  of  the  con 
test,  until  we  are  completely  blinded  by  it ;  and 

"  Masterless  passion  sways  us  to  the  mood 
Of  what  it  likes  or  loathes." 

The  final  issue  would  be  the  enactment  of  inhuman  laws  to  suppress 
the  religion  of  the  minority,  or  else  inhuman  outrages — riot,  blood 
shed,  incendiarism — perpetrated  in  defiance  of  law.  "You  begin," 
said  Roger  Williams  to  his  opponents  at  Boston,  "  you  begin  by  revil 
ing  your  erring  brethren  :  you  will  end  by  taking  their  lives  ;  for  you 
are  on  a  path  where  there  is  no  halting-place."  He  knew  the  philoso 
phy  of  the  subject  exactly.  It  is  idle  folly  to  let  loose  the  war-dogs 
of  religious  bigotry,  hiss  them  on  their  victims,  and  then  expect  them 
to  be  content  with  barking.  It  is  their  nature  to  tear  the  flesh,  and 
mangle  the  limbs,  and  lap  the  life-blood  ;  and  if  you  desire  them  not 
to  do  so,  keep  them  chained  up. 

Besides  this  natural  tendency  of  the  passions,  the  reason  of  the 
thing  is  altogether  opposed  to  stopping  after  you  begin.  There  is  an 
argument  in  favor  of  killing  heretics  which  you  can  never  answer, 
except  by  totally  denying  all  power  to  molest  them.  If  it  be  our 


64:  MISCELLANEOUS. 

mission  to  propagate  religious  truth,  as  we  understand  it,  by  punish 
ing  those  who  refuse  to  accept  it,  why  do  we  trifle  with  the  great  work 
intrusted  to  our  hands  ?  If  we  are  responsible  for  the  faith  of  others 
as  well  as  our  own,  how  dare  we  allow  the  God  of  the  universe  to  be 
mocked  and  insulted  by  a  false  worship  ?  "We  know  very  well  that 
such  errors  are  not  to  be  eradicated  except  by  destroying  all  who  be 
lieve  them.  Nothing  but  the  most  thorough  work  will  crush  them 
out.  If  such  be  the  service  that  God  requires  of  us,  let  us  perform  it 
as  men  who  know  that  we  are  working  under  our  great  Taskmaster's 
eye.  Subdue  the  sentiment  that  might  make  you  revolt  against  duty. 
Gird  every  man  his  sword  upon  his  thigh  ;  go  through  the  camp  and 
slay  every  man  his  brother  and  his  friend.  Feed  the  eagles  with  the 
flesh  of  all  who  dare  to  misbelieve  ;  give  their  roofs  to  the  flames,  and 
let  not  one  stone  of  their  churches  remain  upon  another.  This  reason 
ing  is  perfectly  sound,  if  you  concede  the  premises.  Once  let  go  your 
hold  upon  the  true  doctrine  of  perfect  equality,  and  logic,  as  well  as 
passion,  will  carry  you  irresistibly  to  the  other  extreme. 

The  tendency  of  bigotry  to  run  into  wild  extravagance  is  partly 
accounted  for  by  its  singular  gullibility.  Its  capacity  for  swallowing 
falsehood  is  absolutely  unlimited.  The  most  monstrous  calumnies 
that  human  mendacity  ever  forged  were  piled  upon  the  primitive 
Christians  at  Eome,  and  were  believed  without  a  spark  of  evidence — 
nay,  in  the  face  of  overwhelming  evidence  to  the  contrary — not  merely 
by  the  unthinking  multitude,  but  by  such  an  historian  as  Tacitus,  by 
such  a  philosopher  as  Pliny,  by  such  a  prince  as  Trajan.  We  have  no 
account  of  any  people  more  industrious,  upright,  and  pure  in  their 
lives  than  the  Vaudois,  the  Israel  of  the  Alps,  as  their  German  histo 
rian  has  called  them.  Yet  the  French  monarch  and  his  ministers 
listened  with  greedy  ears  to  the  lies  which  accused  them  of  the  most 
disgusting  vices  and  the  most  horrible  crimes.  The  "Popish  plot" — 
a  transparent  fabrication  which  any  child  might  have  seen  through — 
for  years  kept  the  minds  of  the  English  people  in  a  convulsion  of 
terror  and  alarm.  The  accused  parties  were  covered  with  a  public 
infamy  from  which  no  proof  of  their  innocence  could  relieve  them, 
while  the  perjured  informers — such  men  as  Gates,  Bedloe,  and  Dan- 
gerfield,  the  most  loathsome  of  human  beings — were  caressed  and 
fondled  as  the  very  darlings  of  the  nation.  If  you  find  a  man  thor 
oughly  saturated  with  bigotry  and  hate  against  any  particular  sect, 
you  may  readily  make  him  believe  that  its  members  are  all  corrupt, 
its  ministers  the  spies  of  some  foreign  enemy,  its  churches  the  deposi 
taries  of  hostile  arms,  and  its  female  schools  places  where  the  most 
abandoned  licentiousness  is  systematically  taught.  You  need  not 
trouble  yourself  to  give  him  proofs,  and  you  need  not  fear  any  coun 
ter-proofs — he  will  believe  it  anyhow.  I  know  more  than  one  sharp 
man  who  thinks  that  Charles  Carroll  was  an  enemy  of  American  inde- 


MISCELLANEOUS.  65 

pendence,  and  I  have  heard  the  most  implicit  confidence  in  Maria 
Monk  expressed  by  a  statesman  who  aspires  to  the  presidency. 

This  evil  spirit  of  persecution  is  indeed  very  far  from  confining 
itself  to  the  ignorant  and  depraved.  It  has  often  brutalized  the  kind 
liest  natures,  and  under  its  influence  the  man  of  genius  drivels  like  an 
idiot.  I  think  no  one  can  read  the  writings  of  St.  Francis  Xavier 
without  being  touched  by  the  deep  tone  of  his  personal  piety,  yet  he 
was  the  author  of  that  diabolical  invention,  the  Spanish  Inquisition. 
That  Calvin  was  the  profoundest  thinker  of  his  age  everybody  admits  ; 
to  deny  the  sincerity  of  his  devotion  would  be  simply  absurd  ;  but  his 
name  is  inseparably  linked  with  one  of  the  foulest  murders  that  ever 
blackened  the  face  of  the  sky.  Even  the  matchless  intellect  of  Milton 
was  subdued  to  the  service  of  the  same  demon.  When  all  his  facul 
ties  were  roused  in  defense  of  free  conscience,  there  was  one  class  of 
his  opponents  that  he  gave  up  without  hesitation  to  the  sword  and  the 
fagot.  The  great  heart  which  conceived  all  the  glories  of  the  "  Para 
dise  Lost,"  had  no  drop  of  pity  in  it  for  the  sufferings  of  the  Irish. 
The  loftiest  hymn  of  his  praise  was  sung  to  the  man  who  carried  the 
"curse  of  Cromwell"  through  that  devoted  island. 

It  not  only  nourishes  those  violent  passions  which  lead  to  blood 
shed  and  tyranny,  it  is  almost  equally  objectionable  for  its  meaner 
vices  of  treachery  and  fraud.  It  seldom  approaches  you  in  fair  hostil 
ity,  with  its  weapon  drawn  and  its  visor  up  ;  it  hides  its  hideous  face 
under  some  plausible  disguise,  and  surrounds  itself  with  all  the  ma 
chinery  of  false  pretenses.  It  takes  its  adversary  by  the  beard  and 
affectionately  inquires,  "Art  thou  in  health,  my  brother?"  while  it 
stabs  him  under  the  fifth  rib.  Charles  IX  invited  the  leading  Protes 
tants  of  his  kingdom  to  a  royal  wedding,  and  took  such  order  for  their 
entertainment  during  the  night  that  their  mangled  and  lifeless  bodies 
were  scattered  next  morning  through  all  the  streets  of  Paris.  This 
and  other  outrages  were  committed  on  the  absurd  allegation  that 
Protestants  were  not,  and  could  not  be,  faithful  subjects,  or  sound  in 
their  private  morals.  The  statesmen  of  England,  meanwhile,  with  a 
disregard  of  truth  equally  base,  made  the  same  accusation  against 
Catholics,  and  on  that  hypocritical  pretense  compelled  them,  for  more 
than  a  century,  to  groan  under  oppression  compared  to  which  the 
bondage  of  Egypt  was  mild  and  merciful. 

It  engenders  dissimulation  of  another  kind.  It  pays  an  enormous 
premium  for  hypocrisy,  and  crushes  out  all  independence  and  truth 
from  the  hearts  of  the  people.  Sincerity,  even  when  it  clings  to  an 
erroneous  faith,  is  the  first  of  virtues.  But  the  brave,  true  men,  who 
would  rather  suffer  than  belie  their  honest  convictions,  are  hunted 
down  and  sent  to  the  stake,  or  at  least  are  banished  in  disgrace  from 
the  public  councils,  while  the  knave  or  the  coward,  who  is  willing  to 
profess  whatever  creed  is  safe  or  profitable,  is  rewarded  for  his  base- 


66  MISCELLANEOUS. 

ness  with  influence,  power,  and  place.  Bigotry  applies  an  infallible 
test  to  the  merits  of  men.  With  unerring  certainty  she  divides  the 
chaff  from  the  wheat,  but  the  wheat  she  condemns  to  the  unquench 
able  fire  of  her  hatred,  while  the  chaff  is  carefully  stored  away  in  her 
garner.  Therefore  it  is  that,  when  bigotry  reigns,  the  public  service 
is  always  crowded  with  the  worst  men.  Hostility  against  an  unpopu 
lar  religion  is  easily  simulated.  When  you  make  that  a  virtue,  the 
infidel  and  the  ribald  scorner  can  be  as  virtuous  as  anybody.  When 
that  becomes  a  passport  to  the  sovereign's  favor,  the  state  will  be 
served,  not  by  religious  men,  but  by  "hireling  wolves,  whose  gospel 
is  their  maw." 

It  is  useless  to  describe  any  further  the  features  of  this  monstrous 
demon.  It  is  the  Moloch  of  the  earth,  who  sits  on  his  shrine  up  to 
the  ears  in  blood,  and  compels  the  children  of  men  "to  pass  through 
fire  to  his  grim  idol. "  It  corrupts  the  morals,  it  pollutes  the  religion, 
it  endangers  the  safety  of  any  people  who  permit  it  to  gain  a  foothold 
among  them. 

But  we  may  safely  felicitate  ourselves  upon  one  thing.  Our  estab 
lishment  of  perfect  religious  liberty  and  equality  has  not  only  given 
happiness  and  peace  to  ourselves,  but  it  has  revolutionized  the  senti 
ments  of  the  Christian  world.  We  have  led  the  grandest  reform  that 
has  ever  been  seen  since  the  days  of  the  apostles.  England,  under 
the  admitted  influence  of  our  example,  has,  in  a  great  measure, 
knocked  away  the  shackles  from  the  minds  of  her  people.  She  has 
removed  one  political  disability  after  another,  until  at  last  she  wel 
comes  men  of  every  creed  to  her  service.  A  Jew  is  sheriff  of  London, 
Catholics  sit  in  her  Parliament,  and  a  Presbyterian  was,  not  long  ago, 
at  the  head  of  her  Cabinet.  France  has  made  a  progress  still  greater. 
No  one  there  thinks  of  excluding  a  man  from  office  on  account  of  his 
religion.  For  many  years  the  prime  minister,  who  mainly  wielded 
the  power  and  patronage  of  the  kingdom,  was  the  zealous  defender  of 
a  creed  which  the  king  and  four  fifths  of  the  people  rejected.  Even 
the  fund  raised  by  taxation  for  purposes  of  religious  instruction  is  dis 
tributed  to  preachers  'of  the  Protestant  as  well  as  the  Catholic  faith. 
In  those  parts  of  Germany  where  the  religious  wars  were  conducted 
with  the  greatest  ferocity,  the  Catholic  and  the  Protestant  sit  side  by 
side  at  the  same  council  board,  and  even  worship  alternately  in  the 
same  churches.  The  inquisition  has  been  abolished  in  Spain,  and 
auto-da-fes  are  heard  of  no  longer  in  Portugal.  Each  government  in 
Europe  still  supports  what  it  chooses  to  call  the  national  faith,  but 
offenses  against  the  religion  of  the  state  are  nowhere  visited  with 
those  cruel  and  sanguinary  punishments  which  used  to  disgrace  the 
Christian  name.  The  great  light  of  religious  freedom,  which  was  seen 
at  first  only  from  the  mountain-ranges  of  the  intellectual  world,  has 
already  illumined  the  hill-sides,  and  promises  soon  to  expel  the  deep 


MISCELLANEOUS.  67 

darkness  from  the  lowest  valleys.  May  the  time  be  speeded  when  the 
whole  earth  shall  be  bathed  in  its  radiance  ! 

That  America  should  now  give  up  the  proud  position  she  occupies 
in  the  front  of  the  world's  great  march,  and  skulk  back  like  a  recreant 
into  the  rear,  is  a  thought  which  can  not  enter  an  American  mind 
without  causing  a  blush  of  insupportable  shame.  She  stands  pledged 
to  this  principle  in  the  face  of  the  world — she  has  solemnly  devoted 
herself  to  its  championship — she  has  deliberately  promised  it,  not  only 
to  her  own  people,  but  to  all  others  who  should  fly  to  her  for  protec 
tion — and,  if  she  breaks  her  faith,  it  will  be  such  perfidy  as  never 
blackened  the  brow  of  any  nation  before. 

To  avert  a  calamity  so  grievous,  and  to  prevent  a  disgrace  so  in 
delible,  the  country  looks  to  her  educated  men.  The  unbroken  and 
uncorrupted  heart  of  the  people  will  be  always  with  you  on  the  right 
side ;  but  you  are  the  body-guard  of  freedom,  and  it  is  your  special 
duty  to  carry  her  oriflamme  in  the  van  of  every  battle.  Perhaps  no 
dangerous  service  will  be  needed  soon.  You  may  safely  sit  still  while 
your  enemies  merely  talk  against  the  equal  rights  of  all  the  people. 
But  if  at  any  time  hereafter,  during  the  long  lives  which  I  hope  you 
will  all  enjoy,  some  great  combination  should  arise  to  stir  up  the  bitter 
waters  of  sectarian  strife,  and  to  marshal  ignorance,  prejudice,  and 
selfishness  into  a  body  compact  enough  to  endanger  the  bulwarks  of 
the  Constitution,  then  let  your  flag  stream  out  upon  the  wind  ! 

" .  .  .  then  stand  you  up, 

Shielded,  and  helmed,  and  weaponed  with  the  truth, 
And  drive  before  you  into  uttermost  shame 
Those  recreant  caitiffs." 


"POLITICAL   PREACHING."— EEPLY  TO  DE.  NEVIN. 

YORK,  July  25,  1866. 

To  the  Rev.  Alfred  Nevin,  D.  D.  : 

MY  DEAE  SIR  :  Your  letter  addressed  to  me  through  the  Phila 
delphia  "  Evening  Bulletin  "  disappoints  me,  because  I  did  not  expect 
it  to  come  in  that  way,  and  because  it  does  not  cover  the  subject  in 
issue  between  us  ;  but,  if  I  am  silent,  your  friends  will  say,  with  some 
show  of  reason,  that  you  have  vindicated  "political  preaching  "so 
triumphantly  that  all  opposition  is  confounded.  I  must,  therefore, 
speak  freely  in  reply.  In  doing  so,  I  mean  to  say  nothing  inconsistent 
with  my  great  respect  for  your  high  character  in  the  Church  and  in 
the  world.  The  admirable  style  and  temper  of  your  own  communica 
tion  deserve  to  be  imitated. 


68  MISCELLANEOUS. 

I  fully  concede  the  right  you  claim  for  clergymen  to  select  their 
own  themes  and  handle  them  as  they  please.  You  say  truly  that 
neither  lawyers  nor  physicians,  nor  any  other  order  of  men,  have  the 
least  authority  to  control  you  in  these  particulars.  But  you  will  not 
deny  that  this  is  a  privilege  which  may  be  abused.  You  expressly 
admit  that  some  clergymen  have  abused  it,  "and,  ~by  doing  so,  did 
more  than  any  other  class  of  men  to  commence  and  continue  the  late 
rebellion."  While,  therefore,  we  can  assert  no  power  to  dictate  your 
conduct,  much  less  to  force  you,  we  are  surely  not  wrong  when  we 
entreat  you  to  impose  upon  yourselves  those  restrictions  which  reason 
and  revelation  have  shown  to  be  necessary  for  the  good  of  the  Church 
and  the  safety  of  civil  society. 

I  acknowledge  that  your  commission  is  a  very  broad  one.  You 
must  "declare  the  whole  counsel  of  God,"  to  the  end  that  sinners 
may  be  convinced  and  converts  built  up  in  their  most  holy  faith. 
Truth,  justice,  temperance,  humility,  mercy,  peace,  brotherly  kind 
ness,  charity — the  whole  circle  of  the  Christian  virtues — must  be 
assiduously  taught  to  your  hearers ;  and,  if  any  of  them  be  inclined 
to  the  opposite  vices,  you  are  to  denounce  them  without  fear,  by  pri 
vate  admonition,  by  open  rebuke,  or  by  a  general  delivery  of  the  law 
which  condemns  them.  You  are  not  bound  to  pause  in  the  perform 
ance  of  this  duty  because  it  may  offend  a  powerful  ruler  or  a  strong 
political  party.  Nor  should  you  shrink  from  it  when  bad  men,  for 
their  own  purposes,  approve  what  you  do.  Elevate  the  moral  charac 
ter,  enlighten  the  darkness,  and  purify  the  hearts  of  those  who  are 
under  your  spiritual  charge  at  all  hazards,  for  this  is  the  work  which 
your  great  Taskmaster  has  given  you  to  do,  and  he  will  admit  no  ex 
cuse  for  neglecting  it. 

But  this  is  precisely  what  the  political  preacher  is  not  in  the  habit 
of  doing.  He  directs  the  attention  of  his  hearers  away  from  their 
own  sins  to  the  sins — real  or  imputed — of  other  people.  By  teaching 
his  congregation  that  they  are  better  than  other  men,  he  fills  their 
hearts  with  self-conceit,  bigotry,  spiritual  pride,  envy,  hatred,  malice, 
and  all  un charitableness.  Instead  of  the  exhortation,  which  they 
need,  to  take  the  beam  out  of  their  own  eye,  he  incites  them  to  pluck 
the  mote  from  their  brother's.  He  does  not  tell  them  what  they  shall 
do  to  be  saved,  but  he  instructs  them  very  carefully  how  they  shall 
act  for  the  destruction  of  others.  He  rouses  and  encourages  to  the 
utmost  of  his  ability  those  brutal  passions  which  result  in  riot,  blood 
shed,  spoliation,  civil  war,  and  general  corruption  of  morals. 

You  commit  a  grievous  error  in  supposing  that  politics  and  re 
ligion  are  so  mingled  together  that  you  can  not  preach  one  without 
introducing  the  other.  Christ  and  his  apostles  kept  them  perfectly 
separate.  They  announced  the  great  facts  of  the  gospel  to  each  in 
dividual  whom  they  addressed.  When  these  were  accepted,  the  believer 


MISCELLANEOUS.  69 

was  told  to  repent  and  be  baptized  for  the  remission  of  his  sins,  and 
afterward  to  regulate  his  own  life  by  the  rules  of  a  pure  and  perfect 
morality.  They  expressed  no  preference  for  one  form  of  government 
over  another.  They  provoked  no  political  revolutions,  and  they  pro 
posed  no  legal  reforms.  If  they  had  done  so,  they  would  have  flatly 
contradicted  the  declaration  that  Christ's  kingdom  was  not  of  this 
world,  and  Christianity  itself  would  have  died  out  in  half  a  century. 
But  they  accepted  the  relations  which  were  created  by  human  law, 
and  exhorted  their  disciples  to  discharge  faithfully  the  duties  which 
arose  out  of  them.  Though  the  laws  which  defined  the  authority  of 
husbands,  parents,  masters,  and  magistrates  were  as  bad  as  human 
perversity  could  make  them,  yet  the  early  Christians  contented  them 
selves  with  teaching  moderation  in  the  exercise  of  legal  power,  and 
uniformly  inculcated  the  virtues  of  obedience  and  fidelity  upon  wives, 
children,  slaves,  and  subjects.  They  joined  in  no  clamors  for  or 
against  any  administration,  but  simply  testified  against  sin  before  the 
only  tribunal  which  Christ  ever  erected  on  earth — that  is  to  say,  the 
conscience  of  the  sinner  himself.  The  vice  of  political  preaching  was 
wholly  unknown  to  the  primitive  Church. 

It  is  true  that  Paul  counseled  obedience  to  the  government  of 
Nero,  and  I  am  aware  that  modern  clergymen  interpret  his  words  as 
a  justification  of  the  doctrine  that  support  of  an  existing  administra 
tion  is  "part  of  their  allegiance  to  God."  Several  synods  and  other 
ecclesiastical  bodies  have  solemnly  resolved  something  to  that  effect. 
But  they  forget  that  what  Paul  advised  was  simple  submission,  not 
active  assistance,  to  Nero.  The  Christians  of  that  day  did  not  indorse 
his  atrocities  merely  because  he  was  "the  administration  duly  placed 
in  power."  They  did  not  go  with  him  to  the  theatre,  applaud  his  act 
ing,  or  praise  him  in  the  churches  when  he  kidnapped  their  brethren, 
set  fire  to  a  city,  or  desolated  a  province.  Nor  did  they  assist  at  his 
apotheosis  after  his  death,  or  pronounce  funeral  sermons  to  show  that 
he  was  greater  than  Scipio,  more  virtuous  than  Cato,  and  more  elo 
quent  than  Cicero.  Political  preachers  would  have  done  this,  but 
Paul  and  Peter  did  no  such  thing. 

There  is  nothing  in  the  Scriptures  to  justify  the  Church  in  apply 
ing  its  discipline  to  any  member  for  offenses  purely  political,  much  less 
for  his  mere  opinions  or  feelings  on  public  affairs.  The  clergy  are 
without  authority,  as  they  are  often  without  fitness,  to  decide  for 
their  congregation  what  is  right  or  what  is  wrong  in  the  legislation  of 
the  country.  They  are  not  called  or  sent  to  propagate  any  kind  of 
political  doctrine.  The  Church  and  the  State  are  entirely  separate 
and-  distinct  in  their  origin,  their  object,  and  the  sphere  of  their  ac 
tion  ;  insomuch  that  the  organism  of  one  can  never  be  used  for  any 
purpose  of  the  other  without  injury  to  both. 

Do  I,  therefore,  say  that  the  Christian  religion  is  to  have  no  influ- 


70  MISCELLANEOUS. 

ence  on  the  political  destiny  of  man  ?  Far  from  it.  Notwithstand 
ing  the  unfaithfulness  of  many  professors,  it  has  already  changed  the 
face  of  human  society,  and  it  will  yet  accomplish  its  mission  by  spread 
ing  peace,  independence,  truth,  justice,  and  liberty,  regulated  by  law, 
"from  the  sea  to  the  uttermost  ends  of  the  earth."  But  this  will  be 
accomplished  only  by  reforming  and  elevating  the  individuals  of  whom 
society  is  composed — not  by  exasperating  communities  against  each 
other,  not  by  any  alliance  with  the  governments  of  the  world,  not  by 
any  vulgar  partnership  with  politicians  to  kill  and  plunder  their 
enemies. 

Every  time  you  reform  a  bad  man,  and  bring  his  character  up  to 
the  standard  of  Christian  morality,  you  make  an  addition,  greater  or 
less,  to  that  righteousness  which  exalteth  a  nation,  and  subtract  an 
equal  sum  from  the  sin  which  is  a  reproach  to  any  people.  Some 
times  a  single  conversion  is  extremely  important  in  its  immediate 
effect  upon  the  public  interests  of  a  whole  nation.  No  doubt  the 
acceptance  of  the  truth  by  Dionysius,  the  Areopagite,  had  much  to 
do  in  molding  the  subsequent  laws  and  customs  of  Athens.  The  con 
version  of  Constantine  was  followed  by  the  instant  abrogation  of  all 
laws  which  fettered  the  conscience.  In  the  reign  of  Theodosius  the 
people  of  Thessalonica  rose  against  the  Eoman  garrison  and  killed  its 
commander.  For  this  act  of  rebellion  the  emperor  decreed  against 
them  the  curse  of  an  indiscriminate  war,  in  which  the  guilty  and  the 
innocent  were  confounded  together  in  one  general  slaughter.  His 
spiritual  "guide,  philosopher,  and  friend"  at  the  time  was  Ambrose, 
Archbishop  of  Milan,  who  boldly  denounced  his  cruelty,  refused  to 
give  him  the  sacrament,  or  even  to  administer  it  in  his  presence,  com 
pelled  him  to  take  his  seat  among  the  penitents  on  the  portico  of  the 
church,  and  induced  him  to  humble  his  diadem  in  the  dust  for  eight 
months  in  succession.  The  conscience  of  the  emperor  was  thoroughly 
awakened ;  his  subsequent  reign  was  distinguished  by  justice  and 
mercy,  the  integrity  of  the  empire  was  preserved  in  peace,  and  the 
great  "  Theodosian  Code,"  the  product  of  that  bitter  repentance,  is 
still  read  and  quoted  for  its  admirable  union  of  humanity  and  policy. 
Ambrose  produced  these  consequences  by  acting  in  the  true  capacity 
of  a  Christian  minister,  for  he  reformed  the  criminal  by  a  direct 
appeal  to  his  own  heart.  Apolitical  preacher,  in  the  same  circum-' 
stances,  would  have  inflamed  the  sanguinary  passions  of  the  monarch 
by  exaggerating  the  treason  of  the  Thessalonians,  and  counseling  the 
military  execution  of  all  who  presumed  to  sympathize  in  their  suffer 
ings. 

You  will  see,  I  think,  the  distinction  I  would  make.  A  gospel 
preacher  addresses  the  conscience  of  his  hearers  for  the  honest  pur 
pose  of  converting  them  from  the  error  of  their  ways — a  political 
preacher  speaks  to  one  community,  one  party,  or  one  sect,  and  his 


MISCELLANEOUS.  71 

theme  is  the  wickedness  of  another.  The  latter  effects  no  religious 
purposes  whatever,  but  the  chances  are,  ninety-nine  in  a  hundred, 
that  he  excites  the  bad  passions  of  those  who  are  present,  while  he 
slanders  the  absent  and  undefended.  Both  classes  of  preachers  fre 
quently  speak  upon  the  same  or  similar  subjects,  but  they  do  so  with 
different  objects  and  aims. 

I  will  make  my  meaning  more  clear  by  taking  your  own  illustra 
tions.  You  believe  in  the  first  day  of  the  week  as  a  Sabbath,  and,  so 
believing,  your  duty  undoubtedly  is  to  exhort  all  persons  under  your 
charge  to  observe  it  strictly ;  but  you  have  no  right  to  preach  a  cru 
sade  against  the  Jews  and  Seventh-day  Baptists,  to  get  intolerant  laws 
enacted  against  them  for  keeping  Saturday  as  a  day  of  rest.  If  drunk 
enness  be  a  sin  which  easily  besets  your  congregation,  you  may  warn 
them  against  it,  and,  inasmuch  as  abstinence  is  always  easier  than 
moderation,  you  should  advise  them  to  taste  not,  touch  not,  and 
handle  not ;  but  your  position  gives  you  no  authority  to  provoke  vio 
lent  hostilities  against  tavern-keepers,  liquor-dealers,  or  distillers.  If 
any  of  your  hearers  be  ignorant  or  coarse  enough  to  desire  more  wives 
than  one  apiece,  you  should  certainly  teach  them  that  polygamy  is 
the  worst  feature  of  Asiatic  manners,  inconsistent  with  Christianity, 
and  dangerous  to  domestic  happiness  ;  but  you  can  not  lawfully  urge 
them  to  carry  fire  and  sword  into  the  territory  of  the  Mormons  merely 
because  some  of  the  Mormons  are  in  this  respect  less  holy  than  you. 
If  the  holding  of  slaves  or  bond-servants  be  a  practical  question 
among  the  members  of  your  church,  I  know  of  nothing  which  forbids 
you  to  teach  whatever  you  conscientiously  believe  to  be  true  on  that 
subject.  But  in  a  community  where  slavery  is  not  only  unknown  but 
impossible,  why  should  any  preacher  make  it  the  subject  of  his  weekly 
vituperation  ?  You  do  not  improve  the  religion  of  the  slaveholder 
by  traducing  his  character,  nor  mend  the  spiritual  condition  of  your 
own  people  by  making  them  thirst  for  the  blood  of  their  fellow-men. 

If  any  person,  to  whom  the  service  of  another  is  due  by  the  laws 
of  the  State  in  which  he  lives,  shall  need  your  instructions  to  regulate 
his  personal  conduct  toward  the  slave,  you  are  bound,  in  the  first 
place,  to  tell  him  that,  as  long  as  that  relation  exists,  he  should  be 
have  with  the  utmost  humanity  and  kindness  ;  for  this  you  have  the 
clear  warrant  of  the  apostolic  example  and  precept.  In  dealing  with 
such  a  person  you  may  go  as  much  further  as  your  own  conscientious 
interpretation  of  the  Bible  will  carry  you.  If  you  are  sure  that  the 
divine  law  does,  under  all  circumstances,  make  the  mere  existence  of 
such  a  relation  sinful  on  the  part  of  the  master,  you  should  induce 
him  to  dissolve  it  by  the  immediate  emancipation  of  his  slaves ;  for 
that  is  truth  to  you  which  you  believe  to  be  true.  But  where  is  the 
authority  for  preaching  hatred  of  those  who  understand  the  Scripture 
differently  ?  "What  privilege  can  you  show  for  exciting  servile  insur- 


72  MISCELLANEOUS. 

rection  ?  Who  gave  you  the  right  to  say  that  John  Brown  was  better 
than  any  other  thief  or  murderer,  merely  because  his  crimes  were  com 
mitted  against  pro-slavery  men  ? 

I  think  the  minister,  in  his  pulpit  discourses,  is  forbidden  to  touch 
at  all  upon  that  class  of  subjects  which  are  purely  political ;  such,  for 
instance,  as  the  banking  law,  tariff,  railroad  charters,  State  rights,  the 
naturalization  laws,  and  negro  suffrage.  These  are  questions  of  mere 
political  expediency  ;  religion  takes  no  cognizance  of  them  ;  they  come 
within  the  sole  jurisdiction  of  the  statesman  ;  and  the  Church  has  no 
more  right  to  take  sides  upon  them  than  the  civil  government  has  to 
use  its  legislative,  judicial,  or  executive  power  for  the  purpose  of  en 
forcing  principles  wholly  religious. 

In  short,  if  I  am  not  entirely  mistaken,  a  Christian  minister  has 
no  authority  to  preach  upon  any  subjects  except  those  in  which  divine 
revelation  has  given  him  an  infallible  rule  of  faith  and  practice  ;  and, 
even  upon  them,  he  must  speak  always  for  the  edification  of  his  own 
hearers,  "rightly  dividing  the  word  of  truth,"  so  as  to  lead  them  in 
the  way  of  all  righteousness.  When  he  does  more  than  this  he  goes 
beyond  his  commission,  he  becomes  a  scurvy  politician,  and  his  influ 
ence  is  altogether  pernicious. 

The  use  of  the  clerical  office  for  the  purpose  of  propagating  politi 
cal  doctrines  under  any  circumstances,  or  with  any  excuse,  is,  in  my 
judgment,  not  only  without  authority,  but  it  is  the  highest  crime  that 
can  be  committed  against  the  government  of  God  or  man.  Perhaps  I 
ought  not  to  make  this  broad  assertion  without  giving  some  additional 
reasons  for  it. 

In  the  first  place,  it  is  grossly  dishonest.  I  employ  you  as  a  minis 
ter,  pay  your  salary  and  build  you  a  church,  because  I  have  confidence 
in  your  theological  doctrines,  but  you  may  be  at  the  same  time  wholly 
unfit  for  my  political  leader.  Now,  you  are  guilty  of  a  base  fraud 
upo.n  me  if,  instead  of  preaching  religion,  you  take  advantage  of  the 
position  I  have  given  you  to  ventilate  your  crude  and  ignorant  notions 
on  State  affairs.  I  have  asked  for  bread,  and  you  give  me  a  stone  ;  in 
stead  of  the  fish  I  bargained  for,  you  put  into  my  hands  a  serpent  that 
stings  and  poisons  me. 

It  destroys  the  unity  of  the  Church.  There  is  no  room  for  rational 
dispute  about  the  great  truths  of  Christianity,  but  men  will  never 
agree  upon  political  subjects,  for  human  government  is  at  best  but  a 
compromise  of  selfish  interests  and  conflicting  passions.  When  you 
mix  the  two  together  you  break  the  Church  into  fragments,  and,  in 
stead  of  "one  Lord,  one  faith,  and  one  baptism,"  you  create  a  thou 
sand  warring  sects,  and  substitute  the  proverbial  bitterness  of  the 
odium  theologicum  for  the  "charity  which  thinketh  no  evil." 

No  one  will  deny  that  the  union  of  Church  and  state  is  always  the 
cause  of  bad  government,  perverted  religion,  and  corrupt  morals.  I 


MISCELLANEOUS.  73 

do  not  mean  merely  that  legal  union  which  exists  in  European  coun 
tries.  That  is  bad  enough ;  but  you  have  less  common-sense  than  I 
give  you  credit  for,  if  you  do  not  see  that  this  adulterous  connection 
assumes  its  most  polluting  form  when  the  Church  is  voluntarily  pros 
tituted  by  her  own  ministers  to  a  political  party  in  a  popular  govern 
ment. 

The  evil  influence  of  such  connections  upon  Church  and  state  is 
easily  accounted  for.  Both  of  them  in  combination  will  do  what 
either  would  recoil  from  if  standing  alone.  A  politician,  backed  by 
the  promise  of  the  clergy  to  sustain  him,  can  safely  defy  honesty  and 
trample  upon  the  law,  for,  do  what  he  may,  he  is  assured  of  a  clerical 
support  here  and  of  heaven  hereafter.  The  clergy,  on  the  other  hand, 
and  those  who  are  under  their  influence,  easily  acquire  the  habit  of 
praising  indiscriminately  whatever  is  done  by  their  public  men.  Act 
ing  and  reacting  on  one  another,  they  go  down  together  in  the  direc 
tion  of  the  pit  that  is  bottomless,  and  both  are  found  to  have  "a 
strange  alacrity  at  sinking." 

No  man  can  serve  two  masters  faithfully,  for  he  must  hate  one  if 
he  loves  the  other.  A  minister  who  admires  and  follows  such  men  as 
those  who  have  lately  ruled  and  ruined  this  country  must  necessarily 
despise  the  character  of  Christ.  If  he  glorifies  the  cruelty,  rapacity, 
and  falsehood  of  his  party  leaders,  he  is  compelled,  by  an  inflexible 
law  of  human  nature,  to  "deny  the  Lord  who  bought  him." 

The  experience  of  fifteen  centuries  proves  that  political  preachers 
are  the  great  curse  of  the  world.  More  than  half  the  bloody  wars 
which,  at  different  periods,  have  desolated  Christendom,  were  pro 
duced  by  their  direct  instigation ;  and,  wherever  they  have  thrust 
themselves  into  a  contest  commenced  by  others,  they  always  envon- 
omed  the  strife,  and  made  it  more  cruel,  savage,  and  uncompromis 
ing.  The  religious  wars,  so  called,  had  nothing  religious  about  them 
except  that  they  were  hissed  up  by  the  clergy.  Look  back  and  see  if 
this  be  not  true. 

The  Arian  controversy  (the  first  great  schism)  was  followed  by 
wars  in  which  millions  of  lives  were  lost.  Do  you  suppose  the  real 
quarrel  was  for  the  insertion  or  omission  offilioque  in  that  part  of  the 
creed  which  describes  the  procession  of  the  Holy  Grhost  ?  Did  a  homo- 
ousian  slaughter  his  brother  because  he  was  a  Jiomoiousian  ?  No,  it 
was  not  the  difference  of  a  diphthong,  but  the  plunder  of  an  empire 
that  they  fought  for.  It  was  the  politics  of  the  Church,  not  her  reli 
gion,  that  infuriated  the  parties,  and  converted  men  into  demons. 

The  Thirty  Years'  War  in  Germany  is  often  supposed  to  have  been 
a  fair,  stand-up  fight  between  the  two  leading  forms  of  Christianity. 
It  was  not  so.  The  religious  difference  was  the  false  pretense  of  the 
political  preachers  for  the  promotion  of  their  own  schemes.  There  was 
not  a  sane  man  on  all  the  continent  who  would  have  felt  himself  im- 


74  MISCELLANEOUS. 

pelled  by  motives  merely  religious  to  murder  his  neighbor  for  believ 
ing  or  disbelieving  in  transubstantiation.  If  proof  of  this  were  want 
ing,  it  might  be  found  in  the  fact  that,  long  before  the  war  ended,  the 
sectarian  cries  were  abandoned,  and  Catholics,  as  well  as  Protestants, 
were  fighting  on  both  sides. 

It  is  utterly  impossible  to  believe  that  the  clergy  of  England  and 
Scotland,  if  they  had  not  been  politicians,  would  have  thought  of 
waging  bloody  wars  to  settle  questions  of  election  and  reprobation, 
fate,  foreknowledge,  free-will,  and  other  points  of  metaphysical  the 
ology.  Nor  would  they,  apart  from  their  politics,  have  encouraged 
and  committed  the  other  horrid  crimes  of  which  they  were  guilty  in 
the  name  of  religion. 

Can  you  think  that  the  Irish  were  invaded,  and  conquered,  and 
oppressed,  and  murdered,  and  robbed  for  centuries,  merely  because 
the  English  loved  and  believed  in  the  Protestant  religion  ?  I  suppose 
you  know  that  those  brutal  atrocities  were  carried  on  for  the  purpose 
of  giving  to  political  preachers  in  England  possession  of  the  churches, 
cathedrals,  glebe-lands,  and  tithes  which  belonged  to  the  Irish  Catho 
lics.  The  soldier  was  also  rewarded  by  confiscations  and  plunder. 
The  Church  and  the  state  hunted  in  couples,  and  Ireland  was  the 
prey  which  they  ran  down  together. 

Coming  to  our  own  country,  you  find  Massachusetts  and  Connecti 
cut,  in  colonial  times,  under  the  sole  domination  of  political  preach 
ers.  Their  treacherous  wars  upon  the  Indians  for  purposes  wholly 
mercenary  ;  their  enslaving  of  white  persons,  as  well  as  red  ones,  and 
selling  them  abroad,  or  "swapping  them  for  blackamoors";  their 
whipping,  imprisoning,  and  killing  Quakers  and  Baptists  for  their 
conscientious  opinions ;  and  their  base  treatment  of  such  men  as 
Roger  Williams  and  his  friends,  will  mark  their  government  through 
all  time  as  one  of  the  cruelest  and  meanest  that  ever  existed. 

Political  preachers  have  not  behaved  any  better  since  the  Revolu 
tion  than  before.  About  the  commencement  of  the  present  century 
they  were  busy  in  their  vile  vocation  all  over  New  England,  and  con 
tinued  it  for  many  years.  The  willful  and  deliberate  slanders  habitu 
ally  uttered  from  the  pulpit  against  Jefferson,  Madison,  and  the  friends 
who  supported  them,  were  a  disgrace  to  human  nature.  The  immedi 
ate  effect  of  this  was  the  Yankee  plot  to  secede  from  the  Union,  fol 
lowed  by  corrupt  combinations  with  a  foreign  enemy  to  betray  the 
liberties  of  the  country.  Its  remoter  consequences  are  seen  in  the 
shameless  rapacity  and  bitter  malignity  which,  even  at  this  moment, 
are  howling  for  the  property  and  blood  of  an  unarmed  and  defenseless 
people. 

You  and  I  both  remember  the  political  preaching  which  ushered 
in  and  supported  the  reign  of  the  Know-Nothings,  Blood-Tubs,  and 
Plug-Uglies ;  when  Maria  Monk  was  a  saint,  and  Joe  Barker  was 


MISCELLANEOUS.  75 

mayor  of  Pittsburg ;  when  pulpits  resounded  every  Sunday  with  the 
most  injurious  falsehoods  against  Catholics  ;  when  the  public  mind 
was  debauched  by  the  inculcation  of  hypocrisy  and  deception  ;  when 
ministers  met  their  political  allies  in  sworn  secrecy  to  plot  against  the 
rights  of  their  fellow-citizens.  You  can  not  forget  what  came  of  this 
— riot,  murder,  church-burning,  lawless  violence  all  over  the  land, 
and  the  subjugation  of  several  great  States  to  the  political  rule  of  a 
party  destitute  alike  of  principle  and  capacity. 

I  could  easily  prove  that  those  clerical  politicians,  who  have  tied 
their  churches  to  the  tail  of  the  Abolition  party,  are  criminal  on  a 
grander  scale  than  any  of  their  predecessors.  But  I  forbear,  partly 
because  I  have  no  time,  and  partly  because  it  may,  for  aught  I  know, 
be  a  sore  subject  with  you.  I  would  not  excite  your  wrath,  but  rather 
"provoke  you  to  good  works." 

Apart  from  the  general  subject  there  are  two  or  three  special  ideas 
expressed  in  your  letter  from  which  I  venture  to  dissent. 

You  think  that,  though  a  minister  may  speak  from  the  pulpit  on 
politics,  he  ought  not  to  indicate  what  party  he  belongs  to .  It  strikes 
me  that,  if  he  has  a  party,  and  wants  to  give  it  ecclesiastical  aid  or 
comfort,  he  should  boldly  avow  himself  to  be  what  he  is,  so  that  all 
men  may  know  him.  Sincerity  is  the  first  of  virtues.  It  is  bad  to  be 
a  wolf,  but  a  wolf  in  sheep's  clothing  is  infinitely  worse. 

You  represent  the  Church  as  an  unfinished  structure,  and  the  state 
as  its  scaffolding.  I  think  the  Church  came  perfect  from  the  hand  of 
its  divine  Architect — built  upon  a  rock,  established,  finished,  com 
plete — and  every  one  who  comes  into  it  by  the  right  door  will  find  a 
mansion  prepared  for  him.  It  needs  no  scaffold.  Its  founder  re 
fused  all  connection  with  human  governments  for  scaffolding  or  any 
other  purpose. 

You  say  (in  substance)  that,  without  sometimes  taking  political 
subjects,  a  minister  is  in  danger  of  falling  into  a  "vague,  indefinite, 
and  non-committal  style,"  which  will  do  no  good,  and  bring  him  no 
respect.  The  gospel  is  not  vague,  indefinite,  or  non-committal  upon 
the  subjects  of  which  it  takes  jurisdiction,  and  upon  them  you  may 
preach  as  loudly  as  you  please.  But  I  admit  that  in  times  of  great 
public  excitement — an  important  election  or  a  civil  war — men  listen 
impatiently  to  the  teachings  of  faith  and  repentance.  A  sermon 
which  tells  them  to  do  justice,  love  mercy,  and  walk  humbly  before 
God,  is  not  an  entertainment  to  which  they  willingly  invite  them 
selves.  At  such  a  time  a  clergyman  can  vastly  increase  his  personal 
consequence,  and  win  golden  opinions  from  his  audience,  by  pamper 
ing  their  passions  with  a  highly  seasoned  discourse  on  politics.  The 
temptation  to  gratify  them  often  becomes  too  strong  for  the  virtue  of 
the  preacher.  I  fear  that  you  yourself  are  yielding  to  it.  As  a  mere 
layman  I  have  no  right  to  advise  a  doctor  of  divinity,  but  I  hope  I  am 


76  MISCELLANEOUS. 

not  over-presumptuous  when  I  warn  you  against  this  specious  allure 
ment  of  Satan.  All  thoughts  of  putting  the  gospel  aside  because  it 
does  not  suit  the  depraved  tastes  of  the  day,  and  making  political 
harangues  to  win  popularity  in  a  bad  world,  should  be  sternly  trampled 
down  as  the  suggestions  of  that  Evil  One  "  who  was  a  liar  and  a  mur 
derer  from  the  beginning." 

Faithfully  yours,  etc., 

J.  S.  BLACK. 


ANSWEE  TO  INGEESOLL. 

"  Gratiaiio  speaks  an  infinite  deal  of  nothing,  more  than  any  man  in  all 
Venice ;  bis  reasons  are  as  two  grains  of  wheat  hid  in  two  bushels  of  chaff;  you 
shall  seek  all  day  ere  you  find  them;  and,  when  you  have  them,  they  are  not 
worth  the  search." — Merchant  of  Venice. 

THE  request  to  answer  the  foregoing  paper  comes  to  me,  not  in 
the  form  but  with  the  effect  of  a  challenge,  which  I  can  not  decline 
without  seeming  to  acknowledge  that  the  religion  of  the  civilized 
world  is  an  absurd  superstition,  propagated  by  impostors,  professed 
by  hypocrites,  and  believed  only  by  credulous  dupes. 

But  why  should  I,  an  unlearned  and  unauthorized  layman,  be 
placed  in  such  a  predicament?  The  explanation  is  easy  enough. 
This  is  no  business  of  the  priests.  Their  prescribed  duty  is  to  preach 
the  word,  in  the  full  assurance  that  it  will  commend  itself  to  all  good 
and  honest  hearts  by  its  own  manifest  veracity  and  the  singular  purity 
of  its  precepts.  They  can  not  afford  to  turn  away  from  their  proper 
work,  and  leave  willing  hearers  uninstructed,  while  they  wrangle  in 
vain  with  a  predetermined  opponent.  They  were  warned  to  expect 
slander,  indignity,  and  insult,  and  these  are  among  the  evils  which 
they  must  not  resist. 

It  will  be  seen  that  I  am  assuming  no  clerical  function.  I  am  not 
out  on  the  forlorn  hope  of  converting  Mr.  Ingersoll.  I  am  no  preacher 
exhorting  a  sinner  to  leave  the  seat  of  the  scornful  and  come  up  to  the 
bench  of  the  penitents.  My  duty  is  more  analogous  to  that  of  the 
policeman,  who  would  silence  a  rude  disturber  of  the  congregation  by 
telling  him  that  his  clamor  is  false,  and  his  conduct  an  offense  against 
public  decency. 

Nor  is  the  Church  in  any  danger  which  calls  for  the  special  vigi 
lance  of  its  servants.  Mr.  Ingersoll  thinks  that  the  rock-founded 
faith  of  Christendom  is  giving  way  before  his  assaults ;  but  he  is 
grossly  mistaken.  The  first  sentence  of  his  essay  is  a  preposterous 
blunder.  It  is  not  true  that  "a  profound  change  has  taken  place  in 


MISCELLANEOUS.  77 

the  world  of  thought/'  unless  a  more  rapid  spread  of  the  gospel,  and 
a  more  faithful  observance  of  its  moral  principles,  can  be  called  so. 
Its  truths  are  everywhere  proclaimed  with  the  power  of  sincere  con 
viction,  and  accepted  with  devout  reverence  by  uncounted  multitudes 
of  all  classes.  Solemn  temples  rise  to  its  honor  in  the  great  cities ; 
from  every  hill-top  in  the  country  you-  see  the  church-spire  pointing 
toward  heaven,  and  on  Sunday  all  the  paths  that  lead  to  it  are  crowded 
with  worshipers.  In  nearly  all  families,  parents  teach 'their  children 
that  Christ  is  God,  and  his  system  of  morality  absolutely  perfect. 
This  belief  lies  so  deep  in  the  popular  heart  that,  if  every  written 
record  of  it  were  destroyed  to-day,  the  memory  of  millions  could  re 
produce  it  to-morrow.  Its  earnestness  is  proved  by  its  works.  Wher 
ever  it  goes  it  manifests  itself  in  deeds  of  practical  benevolence.  It 
builds,  not  churches  alone,  but  almshouses,  hospitals,  and  asylums. 
It  shelters  the  poor,  feeds  the  hungry,  visits  the  sick,  consoles  the 
afflicted,  provides  for  the  fatherless,  comforts  the  heart  of  the  widow, 
instructs  the  ignorant,  reforms  the  vicious,  and  saves  to  the  uttermost 
them  that  are  ready  to  perish.  To  the  common  observer  it  does  not 
look  as  if  Christianity  were  making  itself  ready  to  be  swallowed  up  by 
infidelity.  Thus  far,  at  least,  the  promise  has  been  kept  that  "  the 
gates  of  hell  shall  not  prevail  against  it." 

There  is,  to  be  sure,  a  change  in  the  party  hostile  to  religion — not 
"a profound  change,"  but  a  change  entirely  superficial — which  con 
sists,  not  in  thought,  but  merely  in  modes  of  expression  and  methods 
of  attack.  The  bad  classes  of  society  always  hated  the  doctrine  and 
discipline  which  reproached  their  wickedness  and  frightened  them  by 
threats  of  punishment  in  another  world.  Aforetime  they  showed 
their  contempt  of  divine  authority  only  by  their  actions ;  but  now, 
under  new  leadership,  their  enmity  against  God  breaks  out  into  artic 
ulate  blasphemy.  They  assemble  themselves  together  ;  they  hear  with 
passionate  admiration  the  bold  harangue  which  ridicules  and  defies  the 
Maker  of  the  universe  ;  fiercely  they  rage  against  the  Highest,  and  loud 
ly  they  laugh,  alike  at  the  justice  that  condemns,  and  the  mercy  that 
offers  to  pardon  them.  The  orator  who  relieves  them  by  assurances  of 
impunity,  and  tells  them  that  no  supreme  authority  has  made  any  law 
to  control  them,  is  applauded  to  the  echo,  and  paid  a  high  price  for 
his  congenial  labor  ;  he  pockets  their  money,  and  flatters  himself  that 
he  is  a  great  power,  profoundly  moving  "the  world  of  thought." 

There  is  another  totally  false  notion  expressed  in  the  opening  para 
graph,  namely,  that  "  they  who  know  most  of  nature  believe  the  least 
about  theology."  The  truth  is  exactly  the  other  way.  The  more 
clearly  one  sees  "the  grand  procession  of  causes  and  effects,"  the  more 
awful  his  reverence  becomes  for  the  author  of  the  "sublime  and  un 
broken  "  law  which  links  them  together.  Not  self-conceit  and  rebel 
lious  pride,  but  unspeakable  humility,  and  a  deep  sense  of  the  meas- 


78  MISCELLANEOUS. 

ureless  distance  between  the  Creator  and  the  creature,  fills  the  mind 
of  him  who  looks  with  a  rational  spirit  upon  the  works  of  the  All-wise 
One.  The  heart  of  Newton  repeats  the  solemn  confession  of  David  : 
"When  I  consider  thy  heavens,  the  work  of  thy  fingers,  the  moon 
and  the  stars  which  thou  hast  ordained  ;  what  is  man  that  thou  art 
mindful  of  him,  or  the  son  of  man  that  thou  visitest  him  ?"  At  the 
same  time,  the  lamentable  fact  must  be  admitted  that  "a  little  learn 
ing  is  a  dangerous  thing  "  to  some  persons.  The  sciolist,  with  a  mere 
smattering  of  physical  knowledge,  is  apt  to  mistake  himself  for  a 
philosopher,  and,  swelling  with  his  own  importance,  he  gives  out, 
like  Simon  Magus,  "  that  himself  is  some  great  one."  His  vanity 
becomes  inflamed  more  and  more,  until  he  begins  to  think  he  knows 
all  things.  He  takes  every  occasion  to  show  his  accomplishments  by 
finding  fault  with  the  works  of  creation  and  Providence ;  and  this  is 
an  exercise  in  which  he  can  not  long  continue  without  learning  to  dis 
believe  in  any  being  greater  than  himself.  It  was  to  such  a  person, 
and  not  to  the  unpretending  simpleton,  that  Solomon  applied  his 
often-quoted  aphorism,  "The  fool  hath  said  in  his  heart,  there  is  no 
God."  These  are  what  Paul  refers  to  as  "vain  babblings  and  the 
opposition  of  science,  falsely  so  called  "  ;  but  they  are  perfectly  pow 
erless  to  stop  or  turn  aside  the  great  current  of  human  thought  on  the 
subject  of  Christian  theology.  That  majestic  stream,  supplied  from 
a  thousand  unfailing  fountains,  rolls  on  and  will  roll  forever. 

Labitur  et  labetur  in  omne  volubilis  aevum. 

Mr.  Ingersoll  is  not,  as  some  have  estimated  him,  the  most  formi 
dable  enemy  that  Christianity  has  encountered  since  the  time  of  Julian 
the  Apostate.  But  he  stands  at  the  head  of  living  infidels,  "by  merit 
raised  to  that  bad  eminence. "  His  mental  organization  has  the  pecul 
iar  defects  which  fit  him  for  such  a  place.  He  is  all  imagination  and 
no  discretion.  He  rises  sometimes  into  a  region  of  wild  poetry,  where 
he  can  color  everything  to  suit  himself.  His  motto  well  expresses 
the  character  of  his  argumentation — "mountains  are  as  unstable  as 
clouds":  a  fancy  is  as  good  as  a  fact,  and  a  high-sounding  period  is 
rather  better  than  a  logical  demonstration.  His  inordinate  self-confi 
dence  makes  him  at  once  ferocious  and  fearless.  He  was  a  practical 
politician  before  he  "took  the  stump"  against  Christianity,  and  at  all 
times  he  has  proved  his  capacity  to  "split  the  ears  of  the  ground 
lings,"  and  make  the  unskillful  laugh.  The  article  before  us  is  the 
least  objectionable  of  all  his  productions.  Its  style  is  higher,  and 
better  suited  to  the  weight  of  the  theme.  Here  the  violence  of  his 
fierce  invective  is  moderated  ;  his  scurrility  gives  place  to  an  attempt 
at  sophistry  less  shocking  if  not  more  true ;  and  his  coarse  jokes  are 
either  excluded  altogether,  or  else  veiled  in  the  decent  obscurity  of 
general  terms.  Such  a  paper  from  such  a  man,  at  a  time  like  the 
present,  is  not  wholly  unworthy  of  a  grave  contradiction. 


MISCELLANEOUS.  79 

He  makes  certain  charges  which  we  answer  by  an  explicit  denial, 
and  thus  an  issue  is  made,  upon  which,  as  a  pleader  would  say,  we 
"put  ourselves  upon  the  country."  He  avers  that  a  certain  "some 
thing  called  Christianity  "  is  a  false  faith  imposed  on  the  world  with 
out  evidence  ;  that  the  facts  it  pretends  to  rest  on  are  mere  inventions  ; 
that  its  doctrines  are  pernicious  ;  that  its  requirements  are  unreason 
able  ;  and  that  its  sanctions  are  cruel.  I  deny  all  this,  and  assert,  on 
the  contrary,  that  its  doctrines  are  divinely  revealed ;  its  fundamental 
facts  incontestably  proved ;  its  morality  perfectly  free  from  all  taint 
of  error,  and  its  influence  most  beneficent  upon  society  in  general, 
and  upon  all  individuals  who  accept  it  and  make  it  their  rule  of 
action. 

How  shall  this  be  determined  ?  Not  by  what  we  call  divine  reve 
lation,  for  that  would  be  begging  the  question  ;  not  by  sentiment, 
taste,  or  temper,  for  these  are  as  likely  to  be  false  as  true  ;  but  by  in 
ductive  reasoning  from  evidence,  of  which  the  value  is  to  be  measured 
according  to  those  rules  of  logic  which  enlightened  and  just  men 
everywhere  have  adopted  to  guide  them  in  the  search  for  truth.  We 
can  appeal  only  to  that  rational  love  of  justice,  and  that  detestation 
of  falsehood,  which  fair-minded  persons  of  good  intelligence  bring  to 
the  consideration  of  other  important  subjects  when  it  becomes  their 
duty  to  decide  upon  them.  In  short,  I  want  a  decision  upon  sound 
judicial  principles. 

Gibson,  the  great  Chief-Justice  of  Pennsylvania,  once  said  to  cer 
tain  skeptical  friends  of  his  :  "  Give  Christianity  a  common-law  trial ; 
submit  the  evidence  pro  and  con  to  an  impartial  jury  under  the  direc 
tion  of  a  competent  court,  and  the  verdict  will  assuredly  be  in  its 
favor."  This  deliverance,  coming  from  the  most  illustrious  judge  of 
his  time,  not  at  all  given  to  expressions  of  sentimental  piety,  and 
quite  incapable  of  speaking  on  any  subject  for  mere  eifect,  staggered 
the  unbelief  of  those  who  heard  it.  I  did  not  know  him  then,  except 
by  his  great  reputation  for  ability  and  integrity,  but  my  thoughts 
were  strongly  influenced  by  his  authority,  and  I  learned  to  set  a  still 
higher  value  upon  all  his  opinions  when,  in  after-life,  I  was  honored 
with  his  close  and  intimate  friendship. 

Let  Christianity  have  a  trial  on  Mr.  Ingersoll's  indictment,  and 
give  us  a  decision  secundum  allegata  et  probata.  I  will  confine  my 
self  strictly  to  the  record — that  is  to  say,  I  will  meet  the  accusations 
contained  in  this  paper,  and  not  those  made  elsewhere  by  him  or 
others. 

His  first  specification  against  Christianity  is  the  belief  of  its  disci 
ples  "  that  there  is  a  personal  God,  the  creator  of  the  material  uni 
verse."  If  God  made  the  world  it  was  a  most  stupendous  miracle, 
and  all  miracles,  according  to  Mr.  Ingersoll's  idea,  are  "the  children 
of  mendacity."  To  admit  the  one  great  miracle  of  creation  would  be 


80  MISCELLANEOUS. 

an  admission  that  other  miracles  are  at  least  probable,  and  that  would 
ruin  his  whole  case.  But  you  can  not  catch  the  leviathan  of  atheism 
with  a  hook.  The  universe,  he  says,  is  natural — it  came  into  being 
of  its  own  accord ;  it  made  its  own  laws  at  the  start,  and  afterward 
improved  itself  considerably  by  spontaneous  evolution.  It  would  be 
a  mere  waste  of  time  and  space  to  enumerate  the  proofs  which  show 
that  the  universe  was  created  by  a  pre-existent  and  self-conscious 
Being,  of  power  and  wisdom  to  us  inconceivable.  Conviction  of  the 
fact  (miraculous  though  it  be)  forces  itself  on  every  one  whose  mental 
faculties  are  healthy  and  tolerably  well-balanced.  The  notion  that  all 
things  owe  their  origin  and  their  harmonious  arrangement  to  the  for 
tuitous  concurrence  of  atoms  is  a  kind  of  lunacy  which  very  few  men 
in  these  days  are  afflicted  with.  I  hope  I  may  safely  assume  it  as  cer 
tain  that  all,  or  nearly  all,  who  read  this  page  will  have  sense  and 
reason  enough  to  see  for  themselves  that  the  plan  of  the  universe 
could  not  have  been  designed  without  a  Designer,  or  executed  without 
a  Maker. 

But  Mr.  Ingersoll  asserts  that,  at  all  events,  this  material  world 
had  not  a  good  and  beneficent  creator  ;  it  is  a  bad,  savage,  cruel  piece 
of  work,  with  its  pestilences,  storms,  earthquakes,  and  volcanoes  ;  and 
man,  with  his  liability  to  sickness,  suffering,  and  death,  is  not  a  suc 
cess,  but,  on  the  contrary,  a  failure.  To  defend  the  Creator  of  the 
world  against  an  arraignment  so  foul  as  this  would  be  almost  as  unbe 
coming  as  to  make  the  accusation.  We  have  neither  jurisdiction  nor 
capacity  to  rejudge  the  justice  of  God.  Why  man  is  made  to  fill  his 
particular  place  in  the  scale  of  creation — a  little  lower  than  the  angels, 
yet  far  above  the  brutes ;  not  passionless  and  pure,  like  the  former, 
nor  mere  machines,  like  the  latter ;  able  to  stand,  yet  free  to  fall ; 
knowing  the  right,  and  accountable  for  going  wrong ;  gifted  with 
reason,  and  impelled  by  self-love  to  exercise  the  faculty — these  are 
questions  on  which  we  may  have  our  speculative  opinions,  but  knowl 
edge  is  out  of  our  reach.  Meantime  we  do  not  discredit  our  mental 
independence  by  taking  it  for  granted  that  the  Supreme  Being  has 
done  all  things  well.  Our  ignorance  of  the  whole  scheme  makes  us 
poor  critics  upon  the  small  part  that  comes  within  our  limited  percep 
tions.  Seeming  defects  in  the  structure  of  the  world  may  be  its  most 
perfect  ornament — all  apparent  harshness  the  tenderest  of  mercies — 

"  All  discord,  harmony  not  understood, 
All  partial  evil,  universal  good." 

But  worse  errors  are  imputed  to  God  as  moral  ruler  of  the  world 
than  those  charged  against  him  as  creator.  He  made  man  badly,  but 
governed  him  worse ;  if  the  Jehovah  of  the  Old  Testament  was  not 
merely  an  imaginary  being,  then,  according  to  Mr.  Ingersoll,  he  was 


MISCELLANEOUS.  81 

a  prejudiced,  barbarous,  criminal  tyrant.  We  will  see  what  ground 
he  lays,  if  any,  for  these  outrageous  assertions. 

Mainly,  principally,  first,  and  most  important  of  all,  is  the  unquali 
fied  assertion  that  the  "moral  code  "  which  Jehovah  gave  to  his  people 
"  is  in  many  respects  abhorrent  to  every  good  and  tender  man."  Does 
Mr.  Ingersoll  know  what  he  is  talking  about  ?  The  moral  code  of  the 
Bible  consists  of  certain  immutable  rules  to  govern  the  conduct  of  all 
men,  at  all  times  and  all  places,  in  their  private  and  personal  relations 
with  one  another.  It  is  entirely  separate  and  apart  from  tne  civil 
polity,  the  religious  forms,  the  sanitary  provisions,  the  police  regula 
tions,  and  the  system  of  international  law  laid  down  for  the  special 
and  exclusive  observance  of  the  Jewish  people.  This  is  a  distinction 
which  every  intelligent  man  knows  how  to  make.  Has  Mr.  Ingersoll 
fallen  into  the  egregious  blunder  of  confounding  these  things  ?  or, 
understanding  the  true  sense  of  his  words,  is  he  rash  and  shameless 
enough  to  assert  that  the  moral  code  of  the  Bible  excites  the  abhor 
rence  of  good  men  ?  In  fact  and  in  truth,  this  moral  code,  which  he 
reviles,  instead  of  being  abhorred,  is  entitled  to,  and  has  received,  the 
profoundest  respect  of  all  honest  and  sensible  persons.  The  second 
table  of  the  Decalogue  is  a  perfect  compendium  of  those  duties  which 
every  man  owes  to  himself,  his  family,  and  his  neighbor.  In  a  few 
simple  words,  which  he  can  commit  to  memory  almost  in  a  minute,  it 
teaches  him  to  purify  his  heart  from  covetousness ;  to  live  decently, 
to  injure  nobody  in  reputation,  person,  or  property,  and  to  give  every 
one  his  own.  By  the  poets,  the  prophets,  and  the  sages  of  Israel, 
these  great  elements  are  expanded  into  a  volume  of  minuter  rules,  so 
clear,  so  impressive,  and  yet  so  solemn  and  so  lofty,  that  no  pre-exist 
ing  system  of  philosophy  can  compare  with  it  for  a  moment.  If  this 
vain  mortal  is  not  blind  with  passion,  he  will  see,  upon  reflection, 
that  he  has  attacked  the  Old  Testament  precisely  where  it  is  the  most 
impregnable. 

Dismissing  his  groundless  charge  against  the  moral  code,  we  come 
to  his  strictures  on  the  civil  government  of  the  Jews,  which  he  says 
was  so  bad  and  unjust  that  the  Lawgiver  by  whom  it  was  established 
must  have  been  as  savagely  cruel  as  the  Creator  that  made  storms  and 
pestilences  ;  and  the  work  of  both  was  more  worthy  of  a  devil  than  a 
god.  His  language  is  recklessly  bad,  very  defective  in  method,  and 
altogether  lacking  in  precision.  But,  apart  from  the  ribaldry  of  it, 
which  I  do  not  feel  myself  bound  to  notice,  I  find  four  objections  to 
the  Jewish  constitution — not  more  than  four — which  are  definite 
enough  to  admit  of  an  answer.  These  relate  to  the  provisions  of  the 
Mosaic  law  on  the  subjects  of — 1.  Blasphemy  and  idolatry ;  2.  War ; 
3.  Slavery  ;  4.  Polygamy.  In  these  respects  he  pronounces  the  Jew 
ish  system  not  only  unwise  but  criminally  unjust. 

Here  let  me  call  attention  to  the  difficulty  of  reasoning  about 


82  MISCELLANEOUS. 

justice  with  a  man  who  has  no  acknowledged  standard  of  right  and 
wrong.  What  is  justice  ?  That  which  accords  with  law ;  and  the 
supreme  law  is  the  will  of  God.  But  I  am  dealing  with  an  adver 
sary  who  does  not  admit  that  there  is  a  God.  Then  for  him  there  is 
no  standard  at  all ;  one  thing  is  as  right  as  another ;  and  all  things 
are  equally  wrong.  Without  a  sovereign  ruler  there  is  no  law,  and 
where  there  is  no  law  there  can  be  no  transgression.  It  is  the  misfor 
tune  of  the  atheistic  theory  that  it  makes  the  moral  world  an  anarchy  ; 
it  refers  all  ethical  questions  to  that  confused  tribunal  where  chaos  sits 
as  umpire  and  "by  decision  more  embroils  the  fray."  But  through 
the  whole  of  this  cloudy  paper  there  runs  a  vein  of  presumptuous 
egoism  which  says  as  plainly  as  words  can  speak  it  that  the  author 
holds  himself  to  be  the  ultimate  judge  of  all  good  and  evil ;  what  he 
approves  is  right,  and  what  he  dislikes  is  certainly  wrong.  Of  course 
I  concede  nothing  to  a  claim  like  that.  I  will  not  admit  that  the 
Jewish  constitution  is  a  thing  to  be  condemned  merely  because  he 
curses  it.  I  appeal  from  his  profane  malediction  to  the  conscience  of 
men  who  have  a  rule  to  judge  by.  Such  persons  will  readily  see  that 
his  specific  objections  to  the  statesmanship  which  established  the  civil 
government  of  the  Hebrew  people  are  extremely  shallow,  and  do  not 
furnish  the  shade  of  an  excuse  for  the  indecency  of  his  general  abuse  : 

1.  He  regards  the  punishments  inflicted  for  blasphemy  and  idola 
try  as  being  immoderately  cruel.  Considering  them  merely  as  reli 
gious  offenses — as  sins  against  God  alone — I  agree  that  civil  law 
should  notice  them  not  at  all.  But  sometimes  they  affect  very  inju 
riously  certain  social  rights  which  it  is  the  duty  of  the  state  to  pro 
tect.  Wantonly  to  shock  the  religious  feelings  of  your  neighbor  is  a 
grievous  wrong.  To  utter  blasphemy  or  obscenity  in  the  presence  of 
a  Christian  woman  is  hardly  better  than  to  strike  her  in  the  face. 
Still,  neither  policy  nor  justice  requires  them  to  be  ranked  among  the 
highest  crimes  in  a  government  constituted  like  ours.  .  But  things 
were  wholly  different  under  the  Jewish  theocracy,  where  God  was  the 
personal  head  of  the  state.  There  blasphemy  was  a  breach  of  political 
allegiance  ;  idolatry  was  an  overt  act  of  treason  ;  to  worship  the  gods 
of  the  hostile  heathen  was  deserting  to  the  public  enemy,  and  giving 
him  aid  and  comfort.  These  are  crimes  which  every  independent 
community  has  always  punished  with  the  utmost  rigor.  In  our  own 
very  recent  history  they  were  repressed  at  the  cost  of  more  lives  than 
Judea  ever  contained  at  any  one  time. 

Mr.  Ingersoll  not  only  ignores  these  considerations,  but  he  goes 
the  length  of  calling  God  a  religious  persecutor  and  a  tyrant  because 
he  does  not  encourage  and  reward  the  service  and  devotion  paid  by 
his  enemies  to  the  false  gods  of  the  pagan  world.  He  professes  to 
believe  that  all  kinds  of  worship  are  equally  meritorious,  and  should 
meet  the  same  acceptance  from  the  true  God.  It  is  almost  incredible 


MISCELLANEOUS.  83 

that  such  drivel  as  this  should  be  uttered  by  anybody.  But  Mr. 
Ingersoll  not  only  expresses  the  thought  plainly — he  urges  it  with  the 
most  extravagant  figures  of  his  florid  rhetoric.  He  quotes  the  first 
commandment,  in  which  Jehovah  claims  for  himself  the  exclusive 
worship  of  his  people,  and  cites,  in  contrast,  the  promise  put  in  the 
mouth  of  Brahma,  that  he  will  appropriate  the  worship  of  all  gods  to 
himself,  and  reward  all  worshipers  alike.  These  passages  being  com 
pared,  he  declares  the  first  "a  dungeon,  where  crawl  the  things  begot 
of  jealous  slime" ;  the  other,  "great  as  the  domed  firmament,  inlaid 
with  suns."  Why  is  the  living  God,  whom  Christians  believe  to  be 
the  Lord  of  liberty  and  Father  of  lights,  denounced  as  the  keeper  of  a 
loathsome  dungeon  ?  Because  he  refuses  to  encourage  and  reward  the 
worship  of  Mammon  and  Moloch,  of  Belial  and  Baal ;  of  Bacchus, 
with  its  drunken  orgies,  and  Venus,  with  its  wanton  obscenities ;  the 
bestial  religion  which  degraded  the  soul  of  Egypt,  and  the  "dark 
idolatries  of  alienated  Judah,"  polluted  with  the  moral  filth  of  all  the 
nations  round  about.  Let  the  reader  decide  whether  this  man,  enter 
taining  such  sentiments  and  opinions,  is  fit  to  be  a  teacher,  or  at  all 
likely  to  lead  us  in  the  way  we  should  go. 

2.  Under  the  constitution  which  God  provided  for  the  Jews,  they 
had,  like  every  other  nation,  the  war-making  power.  They  could  not 
have  lived  a  day  without  it.  The  right  to  exist  implied  the  right  to 
repel,  with  all  their  strength,  the  opposing  force  which  threatened 
their  destruction.  It  is  true,  also,  that  in  the  exercise  of  this  power 
they  did  not  observe  those  rules  of  courtesy  and  humanity  which  have 
been  adopted  in  modern  times  by  civilized  belligerents.  Why  ?  Be 
cause  their  enemies,  being  mere  savages,  did  not  understand,  and 
would  not  practice,  any  rule  whatever  ;  and  the  Jews  were  bound  ex 
necessitate  rei — not  merely  justified  by  the  lex  talionis — to  do  as  their 
enemies  did.  In  your  treatment  of  hostile  barbarians  you  not  only 
may  lawfully,  but  must  necessarily,  adopt  their  mode  of  warfare.  If 
they  come  to  conquer  you,  they  may  be  conquered  by  you ;  if  they 
give  no  quarter,  they  are  entitled  to  none  ;  if  the  death  of  your  whole 
population  be  their  purpose,  you  may  defeat  it  by  exterminating 
theirs.  This  sufficiently  answers  the  silly  talk  of  atheists  and  semi- 
atheists  about  the  warlike  wickedness  of  the  Jews. 

But  Mr.  Ingersoll  positively,  and  with  the  emphasis  of  supreme 
and  all-sufficient  authority,  declares  that  "a  war  of  conquest  is  sim 
ply  murder."  He  sustains  this  proposition  by  no  argument  founded 
in  principle.  He  puts  sentiment  in  place  of  law,  and  denounces 
aggressive  fighting  because  it  is  offensive  to  his  "tender  and  refined 
soul "  :  the  atrocity  of  it  is,  therefore,  proportioned  to  the  sensibilities 
of  his  own  heart.  He  proves  war  a  desperately  wicked  thing  by  con 
tinually  vaunting  his  own  love  for  small  children.  Babes — sweet 
babes — the  prattle  of  babes — are  the  subjects  of  his  most  pathetic 


84  MISCELLANEOUS. 

eloquence,  and  his  idea  of  music  is  embodied  in  the  commonplace 
expression  of  a  Hindoo,  that  the  lute  is  sweet  only  to  those  who  have 
not  heard  the  prattle  of  their  own  children.  All  this  is  very  amiable 
in  him,  and  the  more  so,  perhaps,  as  these  objects  of  his  affection  are 
the  young  ones  of  a  race,  in  his  opinion,  miscreated  by  an  evil-work 
ing  chance.  But  his  plnloprogenitiveness  proves  nothing  against  Jew 
or  Gentile,  seeing  that  all  have  it  in  an  equal  degree,  and  those  feel  it 
most  who  make  the  least  parade  of  it.  Certainly  it  gives  him  no 
authority  to  malign  the  God  who  implanted  it  alike  in  the  hearts  of 
us  all.  But  I  admit  that  his  benevolence  becomes  peculiar  and  ultra 
when  it  extends  to  beasts  as  well  as  babes.  He  is  struck  with  horror 
by  the  sacrificial  solemnities  of  the  Jewish  religion.  "The  killing  of 
those  animals  was,"  he  says,  "a  terrible  system,"  a  "shedding  of 
innocent  blood,"  "shocking  to  a  refined  and  sensitive  soul."  There 
is  such  a  depth  of  tenderness  in  this  feeling,  and  such  a  splendor  of 
refinement,  that  I  give  up  without  a  struggle  to  the  superiority  of  the 
man  who  merely  professes  it.  A  carnivorous  American,  full  of  beef 
and  mutton,  who  mourns  with  indignant  sorrow  because  bulls  and 
goats  were  killed  in  Judea  three  thousand  years  ago,  has  reached  the 
climax  of  sentimental  goodness,  and  should  be  permitted  to  dictate  on 
all  questions  of  peace  and  war.  Let  Grotius,  Vattel,  and  Puffendorf, 
as  well  as  Moses  and  the  prophets,  hide  their  diminished  heads. 

But,  to  show  how  inefficacious,  for  all  practical  purposes,  a  mere 
sentiment  is  when  substituted  for  a  principle,  it  is  only  necessary  to 
recollect  that  Mr.  Ingersoll  is  himself  a  warrior  who  staid  not  behind 
the  mighty  men  of  his  tribe  when  they  gathered  themselves  together  for 
a  war  of  conquest.  He  took  the  lead  of  a  regiment  as  eager  as  himself 
to  spoil  the  Philistines,  "and  out  he  went  a-coloneling."  How  many 
Amalekites,  and  Hittites,  and  Amorites  he  put  to  the  edge  of  the 
sword,  how  many  wives  he  widowed,  or  how  many  mothers  he  "  un- 
babed,"  can  not  now  be  told.  I  do  not  even  know  how  many  droves 
of  innocent  oxen  he  condemned  to  the  slaughter.  But  it  is  certain 
that  his  refined  and  tender  soul  took  great  pleasure  in  all  the  terrors 
with  which  the  war  was  attended,  and  in  all  the  hard  oppressions 
which  the  conquered  people  were  made  to  suffer  afterward.  I  do 
not  say  that  the  war  was  either  better  or  worse  for  his  participation 
and  approval.  But  if  his  own  conduct  (for  which  he  professes  neither 
penitence  nor  shame)  was  right,  it  was  right  on  grounds  which  make 
it  an  inexcusable  outrage  to  call  the  children  of  Israel  savage  crimi 
nals  for  carrying  on  wars  of  aggression  to  save  the  life  of  their  gov 
ernment.  These  inconsistencies  are  the  necessary  consequence  of  hav 
ing  no  rule  of  action,  and  no  guide  for  the  conscience.  When  a  man 
throws  away  the  golden  metewand  of  the  law  which  God  has  provided, 
and  takes  the  elastic  cord  of  feeling  for  his  measure  of  righteousness, 
you  can  not  tell  from  day  to  day  what  he  will  think  or  do. 


MISCELLANEOUS.  85 

3.  But  Jehovah  permitted  his  chosen  people  to  hold  the  captives 
they  took  in  war  or  purchased  from  the  heathen  as  servants  for  life. 
This  was  slavery,  and  Mr.  Ingersoll  declares  that  "in  all  civilized 
countries  it  is  not  only  admitted,  but  it  is  passionately  asserted,  that 
slavery  is,  and  always  was,  a  hideous  crime"  ;  therefore  he  concludes 
that  Jehovah  was  a  criminal.     This  would  be  a  non  sequitur,  even  if 
the  premises  were  true.     But  the  premises  are  false ;  civilized  coun 
tries  have  admitted  no  such  thing.     That  slavery  is  a  crime,  under  all 
circumstances  and  at  all  times,  is  a  doctrine  first  started  by  the  adher 
ents  of  a  political  faction  in  this  country  less  than  forty  years  ago. 
They  denounced  God  and  Christ  for  not  agreeing  with  them,  in  terms 
very  similar  to  those  used  here  by  Mr.  Ingersoll.     But  they  did  not 
constitute  the  civilized  world ;  nor  were  they,  if  the  truth  must  be 
told,  a  very  respectable  portion  of  it.     Politically,  they  were  success 
ful  ;  I  need  not  say  by  what  means,  or  with  what  effect  upon  the 
morals  of  the  country.     Doubtless  Mr.  Ingersoll  gets  a  great  advan 
tage  by  invoking  their  passions  and  their  interests  to  his  aid,  and  he 
knows  how  to  use  it.     I  can  only  say  that,  whether  American  aboli 
tionism  was  right  or  wrong  under  the  circumstances  in  which  we  were 
placed,  my  faith  and  my  reason  both  assure  me  that  the  infallible 
God  proceeded   upon  good  grounds  when  he  authorized  slavery  in 
Judea.     Subordination  of  inferiors  to  superiors  is  the  groundwork  of 
human  society.     All  improvement  of  our  race,  in  this  world  and  the 
next,  must  come  from  obedience  to  some  master  better  and  wiser  than 
ourselves.     There  can  be  no  question  that,  when  a  Jew  took  a  neigh 
boring  savage  for  his  bond-servant,  incorporated  him  into  his  family, 
tamed  him,  taught  him  to  work,  and  gave  him  a  knowledge  of  the  true 
God,  he  conferred  upon  him  a  most  beneficent  boon. 

4.  Polygamy  is  another  of  his  objections  to  the  Mosaic  constitu 
tion.     Strange  to  say,  it  is  not  there.     It  is  neither  commanded  nor 
prohibited  ;  it  is  only  discouraged.     If  Mr.  Ingersoll  were  a  statesman 
instead  of  a  mere  politician,  he  would  see  good  and  sufficient  reasons 
for  the  forbearance  to  legislate  directly  upon  the  subject.     It  would 
be  improper  for  me  to  set  them  forth  here.    He  knows,  probably,  that 
the  influence  of  the  Christian  Church  alone,  and  without  the  aid  of 
state  enactments,  has  extirpated  this  bad  feature  of  Asiatic  manners 
wherever  its  doctrines  were  carried.     As  the  Christian  faith  prevails 
in  any  community,  in  that  proportion  precisely  marriage  is  consecrated 
to  its  true  purpose,  and  all  intercourse  between  the  sexes  refined  and 
purified.     Mr.  Ingersoll  got  his  own  devotion  to  the  principle  of  mo 
nogamy — his  own  respect  for  the  highest  type  of  female  character — 
his  own  belief  in  the  virtue  of  fidelity  to  one  good  wife — from  the 
example  and  precept  of  his  Christian  parents.     I  speak  confidently, 
because  these  are  sentiments  which  do  not  grow  in  the  heart  of  the 
natural    man  without   being  planted.     Why,  then,  does  he  throw 


86  MISCELLANEOUS. 

polygamy  into  the  face  of  the  religion  which  abhors  it  ?  Because  he 
is  nothing  if  not  political.  The  Mormons  believe  in  polygamy,  and 
the  Mormons  are  unpopular.  They  are  guilty  of  haying  not  only 
many  wives  but  much  property,  and,  if  a  war  could  be  hissed  up 
against  them,  its  fruits  might  be  more  "gaynefull  pilladge  than  wee 
doe  now  conceyve  of."  It  is  a  cunning  manoeuvre,  this,  of  strengthen 
ing  atheism  by  enlisting  anti-Mormon  rapacity  against  the  God  of  the 
Christians.  I  can  only  protest  against  the  use  he  would  make  of 
these  and  other  political  interests.  It  is  not  argument ;  it  is  mere 
stump  oratory. 

I  think  I  have  repelled  all  of  Mr.  IngersolPs  accusations  against 
the  Old  Testament  that  are  worth  noticing,  and  I  might  stop  here. 
But  I  will  not  close  upon  him  without  letting  him  see,  at  least,  some 
part  of  the  case  on  the  other  side. 

I  do  not  enumerate  in  detail  the  positive  proofs  which  support  the 
authenticity  of  the  Hebrew  Bible,  though  they  are  at  hand  in  great 
abundance,  because  the  evidence  in  support  of  the  new  dispensation 
will  establish  the  verity  of  the  old — the  two  being  so  connected  to 
gether  that  if  one  is  true  the  other  can  not  be  false. 

.  When  Jesus  of  Nazareth  announced  himself  to  be  Christ,  the  Son 
of  God,  in  Judea,  many  thousand  persons  who  heard  his  words  and 
saw  his  works  believed  in  his  divinity  without  hesitation.  Since  the 
morning  of  the  creation  nothing  has  occurred  so  wonderful  as  the 
rapidity  with  which  this  religion  spread  itself  abroad.  Men  who  were 
in  the  noon  of  life  when  Jesus  was  put  to  death  as  a  malefactor  lived 
to  see  him  worshiped  as  God  by  organized  bodies  of  believers  in  every 
province  of  the  Eoman  Empire.  In  a  few  more  years  it  took  com 
plete  possession  of  the  general  mind,  supplanted  all  other  religions, 
and  wrought  a  radical  change  in  human  society.  It  did  this  in  the 
face  of  obstacles  which,  according  to  every  human  calculation,  were 
insurmountable.  It  was  antagonized  by  all  the  evil  propensities,  the 
sensual  wickedness,  and  the  vulgar  crimes  of  the  multitude,  as  well  as 
the  polished  vices  of  the  luxurious  classes ;  and  was  most  violently 
opposed  even  by  those  sentiments  and  habits  of  thought  which  were 
esteemed  virtuous,  such  as  patriotism  and  military  heroism.  It  en 
countered  not  only  the  ignorance  and  superstition,  but  the  learning 
and  philosophy,  the  poetry,  eloquence,  and  art  of  the  time.  Barba 
rism  and  civilization  were  alike  its  deadly  enemies.  The  priesthood  of 
every  established  religion,  and  the  authority  of  every  government, 
were  arrayed  against  it.  All  these,  combined  together  and  roused  to 
ferocious  hostility,  were  overcome,  not  by  the  enticing  words  of  man's 
wisdom,  but  by  the  simple  presentation  of  a  pure  and  peaceful  doc 
trine,  preached  by  obscure  strangers  at  the  daily  peril  of  their  lives. 
Is  it  Mr.  IngersolPs  idea  that  this  happened  by  chance,  like  the  crea 
tion  of  the  world  ?  If  not,  there  are  but  two  other  ways  to  account 


MISCELLANEOUS.  87 

for  it :  either  the  evidence  by  which  the  apostles  were  able  to  prove 
the  supernatural  origin  of  the  gospel  was  overwhelming  and  irresist 
ible,  or  else  its  propagation  was  provided  for  and  carried  on  by  the 
direct  aid  of  the  Divine  Being  himself.  Between  these  two,  infidelity 
may  make  its  own  choice. 

Just  here  another  dilemma  presents  its  horns  to  our  adversary.  If 
Christianity  was  a  human  fabrication,  its  authors  must  have  been 
either  good  men  or  bad.  It  is  a  moral  impossibility — a  mere  contra 
diction  in  terms — to  say  that  good,  honest,  and  true  men  practiced  a 
gross  and  willful  deception  upon  the  world.  It  is  equally  incredible 
that  any  combination  of  knaves,  however  base,  would  fraudulently 
concoct  a  religious  system  to  denounce  themselves,  and  to  invoke  the 
curse  of  God  upon  their  own  conduct.  Men  that  love  lies,  love  not 
such  lies  as  that.  Is  there  any  way  out  of  this  difficulty,  except  by 
confessing  that  Christianity  is  what  it  purports  to  be — a  divine  revela 
tion  ? 

The  acceptance  of  Christianity  by  a  large  portion  of  the  generation 
contemporary  with  its  Founder  and  his  apostles  was,  under  the  cir 
cumstances,  an  adjudication  as  solemn  and  authoritative  as  mortal 
intelligence  could  pronounce.  The  record  of  that  judgment  has  come 
down  to  us,  accompanied  by  the  depositions  of  the  principal  witnesses. 
In  the  course  of  eighteen  centuries  many  efforts  have  been  made  to 
open  the  judgment  or  set  it  aside  on  the  ground  that  the  evidence  was 
insufficient  to  support  it.  But  on  every  rehearing  the  wisdom  and 
virtue  of  mankind  have  reaffirmed  it.  And  now  comes  Mr.  Ingersoll, 
to  try  the  experiment  of  another  bold,  bitter,  and  fierce  reargument. 
I  will  present  some  of  the  considerations  which  would  compel  me,  if  I 
were  a  judge  or  juror  in  the  cause,  to  decide  it  just  as  it  was  decided 
originally  : 

1.  There  is  no  good  reason  to  doubt  that  the  statements  of  the 
evangelists,  as  we  have  them  now,  are  genuine.     The  multiplication 
of  copies  was  a  sufficient  guarantee  against  any  material  alteration  of 
the  text.     Mr.  Ingersoll  speaks  of  interpolations  made  by  the  fathers 
of  the  Church.     All  he  knows  and  all  he  has  ever  heard  on  that  sub 
ject  is  that  some  of  the  innumerable  transcripts  contained  errors  which 
were  discovered  and  corrected.     That  simply  proves  the  present  integ 
rity  of  the  documents. 

2.  I  call  these  statements  depositions,  because  they  are  entitled  to 
that  kind  of  credence  which  we  give  to  declarations  made  under  oath 
—but  in  a  much  higher  degree,  for  they  are  more  than  sworn  to. 
They  were  made  in  the  immediate  prospect  of  death.     Perhaps  this 
would  not  affect  the  conscience  of  an  atheist — neither  would  an  oath 
— but  these  people  manifestly  believed  in  a  judgment  after  death, 
before  a  God  of  truth,  whose  displeasure  they  feared  above  all  things. 

3.  The  witnesses  could  not  have  been  mistaken.     The  nature  of 


88  MISCELLANEOUS. 

the  facts  precluded  the  possibility  of  any  delusion  about  them.  For 
every  averment  they  had  "the  sensible  and  true  avouch  of  their  own 
eyes  "  and  ears.  Besides,  they  were  plain-thinking,  sober,  unimagina 
tive  men,  who,  unlike  Mr.  Ingersoll,  always,  under  all  circumstances, 
and  especially  in  the  presence  of  eternity,  recognized  the  difference 
between  mountains  and  clouds.  It  is  inconceivable  how  any  fact 
could  be  proved  by  evidence  more  conclusive  than  the  statement  of 
such  persons,  publicly  given  and  steadfastly  persisted  in  through  every 
kind  of  persecution,  imprisonment,  and  torture,  to  the  last  agonies  of 
a  lingering  death. 

4.  Apart  from  these  terrible  tests,  the  more  ordinary  claims  to 
credibility  are  not  wanting.     They  were  men  of  unimpeachable  char 
acter.     The  most  virulent  enemies  of  the  cause  they  spoke  and  died 
for  have  never  suggested  a  reason  for  doubting  their  personal  honesty. 
But  there  is  affirmative  proof  that  they  and  their  fellow-disciples  were 
held  by  those  who  knew  them  in  the  highest  estimation  for  truthful 
ness.     Wherever  they  made  their  report  it  was  not  only  believed,  but 
believed  with  a  faith  so  implicit  that  thousands  were  ready  at  once  to 
seal  it  with  their  blood. 

5.  The  tone  and  temper  of  their  narrative  impress  us  with  a  senti 
ment  of  profound  respect.     It  is  an  artless,  unimpassioned,  simple 
story.     No  argument,  no  rhetoric,  no  epithets,  no  praises  of  friends, 
no  denunciation  of    enemies,   no  attempts  at  concealment.      How 
strongly  these  qualities  commend  the  testimony  of  a  witness  to  the 
confidence  of  judge  and  jury  is  well  known  to  all  who  have  any  expe 
rience  in  such  matters. 

6.  The  statements  made  by  the  evangelists  are  alike  upon  every 
important  point,  but  are  different  in  form  and  expression,  some  of 
them  including  details  which  the  others  omit.    These  variations  make 
it  perfectly  certain  that  there  could  have  been  no  previous  concert 
between  the  witnesses,  and  that  each  spoke  independently  of  the 
others,  according  to  his  own  conscience  and  from  his  own  knowledge. 
In  considering  the  testimony  of  several  witnesses  to  the  same  transac 
tion,  their  substantial  agreement  upon  the  main  facts,  with  circum 
stantial  differences  in  the  detail,  is  always  regarded  as  the  great  char 
acteristic  of  truth  and  honesty.     There  is  no  rule  of  evidence  more 
universally  adopted  than  this — none  better  sustained  by  general  expe 
rience,  or  more  immovably  fixed  in  the  good  sense  of  mankind.     Mr. 
Ingersoll  himself  admits  the  rule  and  concedes  its  soundness.     The 
logical  consequence  of  that  admission  is,  that  we  are  bound  to  take 
this  evidence  as  incontestably  true.     But  mark  the  infatuated  per 
versity  with  which  he  seeks  to  evade  it.     He  says  that  when  we  claim 
that  the  witnesses  were  inspired,  the  rule  does  not  apply,  because  the 
witnesses  then  speak  what  is  known  to  him  who  inspired  them,  and 
all  must  speak  exactly  the  same,  even  to  the  minutest  detail.     Mr. 


MISCELLANEOUS.  89 

Ingersoll's  notion  of  an  inspired  witness  is  that  he  is  no  witness  at  all, 
but  an  irresponsible  medium  who  unconsciously  and  involuntarily 
raps  out  or  writes  down  whatever  he  is  prompted  to  say.  But  this  is 
a  false  assumption,  not  countenanced  or  even  suggested  by  anything 
contained  in  the  Scriptures.  The  apostles  and  evangelists  are  ex 
pressly  declared  to  be  witnesses,  in  the  proper  sense  of  the  word, 
called  and  sent  to  testify  the  truth  according  to  their  knowledge.  If 
they  had  all  told  the  same  story  in  the  same  way,  without  variation, 
and  accounted  for  its  uniformity  by  declaring  that  they  were  inspired, 
and  had  spoken  without  knowing  whether  their  words  were  true  or 
false,  where  would  have  been  their  claim  to  credibility  ?  But  they 
testified  what  they  knew  ;  and  here  comes  an  infidel  critic  impugning 
their  testimony  because  the  impress  of  truth  is  stamped  upon  its  face. 

7.  It  does  not  appear  that  the  statements  of  the  evangelists  were 
ever  denied  by  any  person  who  pretended  to  know  the  facts.     Many 
there  were  in  that  age  and  afterward  who  resisted  the  belief  that  Jesus 
was  the  Christ,  the  Son  of  God,  and  only  Saviour  of  man ;  but  his 
wonderful  works,  the  miraculous  purity  of  his  life,  the  unapproach 
able  loftiness  of  his  doctrines,  his  trial  and  condemnation  by  a  judge 
who  pronounced  him  innocent,  his  patient  suffering,  his  death  on  the 
cross,  and  resurrection  from  the  grave — of  these  not  the  faintest  con 
tradiction  was  attempted,  if  we  except  the  false  and  feeble  story  which 
the  elders  and  chief  priests  bribed  the  guard  at  the  tomb  to  put  in 
circulation. 

8.  What  we  call  the  fundamental  truths  of  Christianity  consist  of 
great  public  events  which  are  sufficiently  established  by  history  with 
out  special  proof.     The  value  of  mere  historical  evidence  increases 
according  to  the  importance  of  the  facts  in  question,  their  general 
notoriety,  and  the  magnitude  of  their  visible  consequences.     Corn- 
wallis  surrendered  to  Washington  at  Yorktown,  and  changed  the  des 
tiny  of  Europe  and  America.     Nobody  would  think  of  calling  a  wit 
ness  or  even  citing  an  official  report  to  prove  it.     Julius  Caesar  was 
assassinated.     We  do  not  need  to  prove  that  fact  like  an  ordinary 
murder.     He  was  master  of  the  world,  and  his  death  was  followed  by 
a  war  with  the  conspirators,  the  battle  at  Philippi,  the  quarrel  of  the 
victorious  triumvirs,  Actium,  and   the  permanent  establishment  of 
imperial  government  under  Augustus.     The  life  and  character,  the 
death  and  resurrection,  of  Jesus  are  just  as  visibly  connected  with 
events  which  even  an  infidel  must  admit  to  be  of  equal  importance. 
The  Church  rose  and  armed  herself  in  righteousness  for  conflict  with 
the  powers  of  darkness ;  innumerable  multitudes  of  the  best  and  wisest 
rallied  to  her  standard  and  died  in  her  cause ;  her  enemies  employed 
the  coarse  and  vulgar  machinery  of  human  government  against  her, 
and  her  professors  were  brutally  murdered  in  large  numbers  ;  her  tri 
umph  was  complete  ;  the  gods  of  Greece  and  Rome  crumbled  on  their 


90  MISCELLANEOUS. 

altars ;  the  world  was  revolutionized  and  human  society  was  trans 
formed.  The  course  of  these  events,  and  a  thousand  others,  which 
reach  down  to  the  present  hour,  received  its  first  propulsion  from  the 
transcendent  fact  of  Christ's  crucifixion.  Moreover,  we  find  the  me 
morial  monuments  of  the  original  truth  planted  all  along  the  way. 
The  sacraments  of  baptism  and  the  supper  constantly  point  us  back 
to.  the  author  and  finisher  of  our  faith.  The  mere  historical  evidence 
is  for  these  reasons  much  stronger  than  what  we  have  for  other  occur 
rences  which  are  regarded  as  undeniable.  When  to  this  is  added  the 
cumulative  evidence  given  directly  and  positively  by  eye-witnesses  of 
irreproachable  character,  and  wholly  uncontradicted,  the  proof  be 
comes  so  strong  that  the  disbelief  we  hear  of  seems  like  a  kind  of 
insanity  : 

u  It  is  the  very  error  of  the  moon, 
Which  conies  more  near  the  earth  than  she  was  wont, 
And  makes  men  mad !  " 

From  the  facts  established  by  this  evidence,  it  follows  irresistibly 
that  the  gospel  has  come  to  us  from  God.  That  silences  all  reasoning 
about  the  wisdom  and  justice  of  its  doctrines,  since  it  is  impossible 
even  to  imagine  that  wrong  can  be  done  or  commanded  by  that  Sov 
ereign  Being  whose  will  alone  is  the  ultimate  standard  of  all  justice. 

But  Mr.  Ingersoll  is  still  dissatisfied.  He  raises  objections  as 
false,  fleeting,  and  baseless  as  clouds,  and  insists  that  they  are  as 
stable  as  the  mountains,  whose  everlasting  foundations  are  laid  by  the 
hand  of  the  Almighty.  I  will  compress  his  propositions  into  plain 
words  printed  in  italics,  and,  taking  a  look  at  his  misty  creations,  let 
them  roll  away  and  vanish  into  air,  one  after  another. 

Christianity  offers  eternal  salvation  as  the  reward  of  belief  alone. 
This  is  a  misrepresentation  simple  and  naked.  No  such  doctrine  is 
propounded  in  the  Scriptures,  or  in  the  creed  of  any  Christian  church. 
On  the  contrary,  it  is  distinctly  taught  that  faith  avails  nothing  with 
out  repentance,  reformation,  and  newness  of  life. 

The  mere  failure  to  believe  it  is  punished  in  hell.  I  have  never 
known  any  Christian  man  or  woman  to  assert  this.  It  is  universally 
agreed  that  children  too  young  to  understand  it  do  not  need  to  believe 
it.  And  this  exemption  extends  to  adults  who  have  never  seen  the 
evidence,  or,  from  weakness  of  intellect,  are  incapable  of  weighing  it. 
Lunatics  and  idiots  are  not  in  the  least  danger,  and,  for  aught  I  know, 
this  category  may,  by  a  stretch  of  God's  mercy,  include  minds  consti 
tutionally  sound,  but  with  faculties  so  perverted  by  education,  habit, 
or  passion  that  they  are  incapable  of  reasoning.  I  sincerely  hope  that, 
upon  this  or  some  other  principle,  Mr.  Ingersoll  may  escape  the  hell 
he  talks  about  so  much.  But  there  is  no  direct  promise  to  save  him 
in  spite  of  himself.  The  plan  of  redemption  contains  no  express  cove- 


MISCELLANEOUS.  91 

nant  to  pardon  one  who  rejects  it  with  scorn  and  hatred.  Our  hope 
for  him  rests  upon  the  infinite  compassion  of  that  gracious  Being 
who  prayed  on  the  cross  for  the  insulting  enemies  who  nailed  him 
there. 

The  mystery  of  the  second  birth  is  incomprehensible.  Christ  estab 
lished  a  new  kingdom  in  the  world,  but  not  of  it.  Subjects  were 
admitted  to  the  privileges  and  protection  of  its  government  by  a  pro 
cess  equivalent  to  naturalization.  To  be  born  again,  or  regenerated, 
is  to  be  naturalized.  The  words  all  mean  the  same  thing.  Does  Mr. 
Ingersoll  want  to  disgrace  his  own  intellect  by  pretending  that  he  can 
not  see  this  simple  analogy  ? 

The  doctrine  of  the  atonement  is  absurd,  unjust,  and  immoral.  The 
plan  of  salvation,  or  any  plan  for  the  rescue  of  sinners  from  the  legal 
operation  of  divine  justice,  could  have  been  framed  only  in  the  coun 
cils  of  the  Omniscient.  Necessarily  its  heights  and  depths  are  not 
easily  fathomed  by  finite  intelligence.  But  the  greatest,  ablest,  wisest, 
and  most  virtuous  men  that  ever  lived  have  given  it  their  profoundest 
consideration,  and  found  it  to  be  not  only  authorized  by  revelation, 
but  theoretically  conformed  to  their  best  and  highest  conceptions  of 
infinite  goodness.  Nevertheless,  here  is  a  rash  and  superficial  man, 
without  training  or  habits  of  reflection,  who,  upon  a  mere  glance, 
declares  that  it  "must  be  abandoned,"  because  it  seems  to  him  "ab 
surd,  unjust,  and  immoral."  I  would  not  abridge  his  freedom  of 
thought  or  speech,  and  the  argumentum  ad  verecundiam  would  be 
lost  upon  him.  Otherwise  I  might  suggest  that,  when  he  finds  all 
authority,  human  and  divine,  against  him,  he  had  better  speak  in  a 
tone  less  arrogant. 

He  does  not  comprehend  how  justice  and  mercy  can  be  blended  to 
gether  in  the  plan  of  redemption,  and  therefore  it  can  not  be  true.  A 
thing  is  not  necessarily  false  because  he  does  not  understand  it :  he 
can  not  annihilate  a  principle  or  a  fact  by  ignoring  it.  There  are 
many  truths  in  heaven  and  earth  which  no  man  can  see  through  ;  for 
instance,  the  union  of  man's  soul  with  his  body  is  not  only  an  unknow 
able  but  an  unimaginable  mystery.  Is  it  therefore  false  that  a  con 
nection  does  exist  between  matter  and  spirit  ? 

How,  he  asks,  can  the  sufferings  of  an  innocent  person  satisfy  jus 
tice  for  the  sins  of  the  guilty  f  This  raises  a  metaphysical  question, 
which  it  is  not  necessary  or  possible  for  me  to  discuss  here.  As  mat 
ter  of  fact,  Christ  died  that  sinners  might  be  reconciled  to  God,  and 
in  that  sense  he  died  for  them — that  is,  to  furnish  them  with  the 
means  of  averting  divine  justice  which  their  crimes  had  provoked. 

What,  he  again  asks,  would  we  think  of  a  man  who  allowed  an 
other  to  die  for  a  crime  which  he  himself  had  committed  ?  I  answer 
that  a  man  who,  by  any  contrivance,  causes  his  own  offense  to  be 
visited  upon  the  head  of  an  innocent  person  is  unspeakably  depraved. 


92  MISCELLANEOUS. 

But  are  Christians  guilty  of  this  baseness  because  they  accept  the 
blessings  of  an  institution  which  their  great  benefactor  died  to  estab 
lish  ?  Loyalty  to  the  King  who  has  erected  a  most  beneficent  govern 
ment  for  us  at  the  cost  of  his  life — fidelity  to  the  Master  who  bought 
us  with  his  blood — is  not  the  fraudulent  substitution  of  an  innocent 
person  in  place  of  a  criminal. 

The  doctrine  of  non-resistance,  forgiveness  of  injuries,  reconcilia 
tion  with  enemies,  as  taught  in  the  New  Testament,  is  the  child  of 
weakness,  degrading,  and  unjust.  This  is  the  whole  substance  of  a 
long,  rambling  diatribe,  as  incoherent  as  a  sick  man's  dream.  Chris 
tianity  does  not  forbid  the  necessary  defense  of  civil  society,  or  the 
proper  vindication  of  personal  rights.  But  to  cherish  animosity,  to 
thirst  for  mere  revenge,  to  hoard  up  wrongs,  real  or  fancied,  and  lie 
in  wait  for  the  chance  of  paying  them  back  ;  to  be  impatient,  unfor 
giving,  malicious,  and  cruel  to  all  who  have  crossed  us — these  dia 
bolical  propensities  are  checked  and  curbed  by  the  authority  and  spirit 
of  the  Christian  religion,  and  the  application  of  it  has  converted  men 
from  low  savages  into  refined  and  civilized  beings. 

The  punishment  of  sinners  in  eternal  hell  is  excessive.  The  future  of 
the  soul  is  a  subject  on  which  we  have  very  dark  views.  In  our  present 
state  the  mind  takes  in  no  idea  except  what  is  conveyed  to  it  through 
the  bodily  senses.  All  our  conceptions  of  the  spiritual  world  are 
derived  from  some  analogy  to  material  things,  and  this  analogy  must 
necessarily  be  very  remote,  because  the  nature  of  the  subjects  com 
pared  is  so  diverse  that  a  close  similarity  can  not  be  even  supposed. 
No  revelation  has  lifted  the  veil  between  time  and  eternity  ;  but  in 
shadowy  figures  we  are  warned  that  a  very  marked  distinction  will  be 
made  between  the  good  and  the  bad  in  the  next  world.  Speculative 
opinions  concerning  the  punishment  of  the  wicked,  its  nature  and 
duration,  vary  with  the  temper  and  the  imaginations  of  men.  Doubt 
less  we  are  many  of  us  in  error  :  but  how  can  Mr.  Ingersoll  enlighten 
us  ?  Acknowledging  no  standard  of  right  and  wrong  in  this  world, 
he  can  have  no  theory  of  rewards  and  punishments  in  the  next.  The 
deeds  done  in  the  body,  whether  good  or  evil,  are  all  morally  alike  in 
his  eyes,  and,  if  there  be  in  heaven  a  congregation  of  the  just,  he  sees 
no  reason  why  the  worst  rogue  should  not  be  a  member  of  it.  It  is 
supposed,  however,  that  man  has  a  soul  as  well  as  a  body,  and  that 
both  are  subject  to  certain  laws,  which  can  not  be  violated  without 
incurring  the  proper  penalty — or  consequence,  if  he  likes  that  word 
better. 

If  Christ  was  God,  he  knew  that  his  followers  would  persecute  and 
murder  men  for  their  opinions  ;  yet  he  did  not  forbid  it.  There  is 
but  one  way  to  deal  with  this  accusation,  and  that  is  to  contradict  it 
flatly.  Nothing  can  be  conceived  more  striking  than  the  prohibition, 
not  only  of  persecution,  but  of  all  the  passions  which  lead  or  incite  to 


MISCELLANEOUS.  93 

it.  No  follower  of  Christ  indulges  in  malice  even  to  his  enemy  with 
out  violating  the  plainest  rule  of  his  faith.  He  can  not  love  God  and 
hate  his  brother  :  if  he  says  he  can,  St.  John  pronounces  him  a  liar. 
The  broadest  benevolence,  universal  philanthropy,  inexhaustible  char 
ity,  are  inculcated  in  every  line  of  the  New  Testament.  It  is  plain 
that  Mr.  Ingersoll  never  read  a  chapter  of  it ;  otherwise  he  would  not 
have  ventured  upon  this  palpable  falsification  of  its  doctrines.  Who 
told  him  that  the  devilish  spirit  of  persecution  was  authorized,  or  en 
couraged,  or  not  forbidden,  by  the  gospel  ?  The  person,  whoever  it 
was,  who  imposed  upon  his  trusting  ignorance  should  be  given  up  to 
the  just  reprobation  of  his  fellow-citizens'. 

Christians  in  modern  times  carry  on  wars  of  detraction  and  slan 
der  against  one  another.  The  discussions  of  theological  subjects  by 
men  who  believe  in  the  fundamental  doctrines  of  Christ  are  singularly 
free  from  harshness  and  abuse.  Of  course  I  can  not  speak  with  abso 
lute  certainty,  but  I  believe  most  confidently  that  there  is  not  in  all 
the  religious  polemics  of  this  century  as  much  slanderous  invective  as 
can  be  found  in  any  ten  lines  of  Mr.  IngersolPs  writings.  Of  course 
I  do  not  include  political  preachers  among  my  models  of  charity  and 
forbearance.  They  are  a  mendacious  set,  but  Christianity  is  no  more 
responsible  for  their  misconduct  than  it  is  for  the  treachery  of  Judas 
Iscariot  or  the  wrongs  done  to  Paul  by  Alexander  the  coppersmith. 

But,  says  he,  Christians  have  been  guilty  of  wanton  and  wicked 
persecution.  It  is  true  that  some  persons,  professing  Christianity, 
have  violated  the  fundamental  principles  of  their  faith  by  inflicting 
violent  injuries  and  bloody  wrongs  upon  their  fellow-men.  But  the 
perpetrators  of  these  outrages  were  in  fact  not  Christians  ;  they  were 
either  hypocrites  from  the  beginning  or  else  base  apostates — infidels  or 
something  worse — hireling  wolves,  whose  gospel  was  their  maw.  Not 
one  of  them  ever  pretended  to  find  a  warrant  for  his  conduct  in  any 
precept  of  Christ  or  any  doctrine  of  his  Church.  All  the  wrongs  of 
this  nature  which  history  records  have  been  the  work  of  politicians, 
aided  often  by  priests  and  ministers  who  were  willing  to  deny  their 
Lord  and  desert  to  the  enemy,  for  the  sake  of  their  temporal  interests. 
Take  the  cases  most  commonly  cited  and  see  if  this  be  not  a  true 
account  of  them.  The  auto-da-fe,  of  Spain  and  Portugal,  the  burn 
ings  at  Smithfield,  and  the  whipping  of  women  in  Massachusetts, 
were  the  outcome  of  a  cruel,  false,  and  anti-Christian  policy.  Coligny 
and  his  adherents  were  killed  by  an  order  of  Charles  IX,  at  the  in 
stance  of  the  Guises,  who  headed  a  hostile  faction,  and  merely  for 
reasons  of  state.  Louis  XIV  revoked  the  Edict  of  Nantes,  and  ban 
ished  the  Waldenses  under  pain  of  confiscation  and  death ;  but  this 
was  done  on  the  declared  ground  that  the  victims  were  not  safe  sub 
jects.  The  brutal  atrocities  of  Cromwell  and  the  outrages  of  the 
Orange  lodges  against  the  Irish  Catholics  were  not  persecutions  by 


94:  MISCELLANEOUS, 

religions  people,  but  movements  as  purely  political  as  those  of  the 
Know-Nothings,  Plug-Uglies,  and  Blood-Tubs  of  this  country.  If 
the  gospel  should  be  blamed  for  these  acts  in  opposition  to  its  princi 
ples,  why  not  also  charge  it  with  the  cruelties  of  Nero,  or  the  present 
persecution  of  the  Jesuits  by  the  infidel  republic  of  France  ? 

Christianity  is  opposed  to  freedom  of  thought.  The  kingdom  of 
Christ  is  based  upon  certain  principles,  to  which  it  requires  the  assent 
of  every  one  who  would  enter  therein.  If  you  are  unwilling  to  own 
His  authority  and  conform  your  moral  conduct  to  His  laws,  you  can 
not  expect  that  He  will  admit  you  to  the  privileges  of  His  government. 
But  naturalization  is  not  forced  upon  you  if  you  prefer  to  be  an  alien. 
The  gospel  makes  the  strongest  and  tenderest  appeal  to  the  heart, 
reason,  and  conscience  of  man — entreats  him  to  take  thought  for  his 
own  highest  interest,  and  by  all  its  moral  influence  provokes  him  to 
good  works  ;  but  he  is  not  constrained  by  any  kind  of  duress  to  leave 
the  service  or  relinquish  the  wages  of  sin.  Is  there  anything  that 
savors  of  tyranny  in  this  ?  A  man  of  ordinary  judgment  will  say, 
no.  But  Mr.  Ingersoll  thinks  it  as  oppressive  as  the  refusal  of  Jeho 
vah  to  reward  the  worship  of  demons. 

The  gospel  of  Christ  does  not  satisfy  the  hunger  of  the  heart.  That 
depends  upon  what  kind  of  a  heart  it  is.  If  it  hungers  after  right 
eousness,  it  will  surely  be  filled.  It  is  probable,  also,  that  if  it  hun 
gers  for  the  filthy  food  of  a  godless  philosophy  it  will  get  what  its 
appetite  demands.  That  was  an  expressive  phrase  which  Carlyle  used 
when  he  called  modern  infidelity  "  the  gospel  of  dirt."  Those  who 
are  greedy  to  swallow  it  will  doubtless  be  supplied  satisfactorily. 

Accounts  of  miracles  are  always  false.  Are  miracles  impossible  ? 
No  one  will  say  so  who  opens  his  eyes  to  the  miracles  of  creation  with 
which  we  are  surrounded  on  every  hand.  You  can  not  even  show 
that  they  are  a  priori  improbable.  God  would  be  likely  to  reveal  his 
will  to  the  rational  creatures  who  were  required  to  obey  it ;  he  would 
authenticate  in  some  way  the  right  of  prophets  and  apostles  to  speak 
in  his  name  ;  supernatural  power  was  the  broad  seal  which  he  affixed 
to  their  commission.  From  this  it  follows  that  the  improbability  of  a 
miracle  is  no  greater  than  the  original  improbability  of  a  revelation, 
and  that  is  not  improbable  at  all.  Therefore,  if  the  miracles  of  the 
New  Testament  are  proved  by  sufficient  evidence,  we  believe  them  as 
we  believe  any  other  established  fact.  They  become  deniable  only 
when  it  is  shown  that  the  great  miracle  of  making  the  world  was 
never  performed.  Accordingly,  Mr.  Ingersoll  abolishes  creation  first, 
and  thus  clears  the  way  to  his  dogmatic  conclusion  that  all  miracles 
are  "the  children  of  mendacity." 

Christianity  is  pernicious  in  its  moral  effect,  darkens  the  mind, 
narrows  the  soul,  arrests  the  progress  of  human  society,  and  hinders 
civilization.  Mr.  Ingersoll,  as  a  zealous  apostle  of  "the  gospel  of 


MISCELLANEO  US.  95 

dirt/'  must  be  expected  to  throw  a  good  deal  of  mud.  But  this  is 
too  much  :  it  injures  himself  instead  of  defiling  the  object  of  his 
assault.  When  I  answer  that  all  we  have  of  virtue,  justice,  intellect 
ual  liberty,  moral  elevation,  refinement,  benevolence,  and  true  wisdom 
came  to  us  from  that  source  which  he  reviles  as  the  fountain  of  evil, 
I  am  not  merely  putting  one  assertion  against  the  other ;  for  I  have 
the  advantage,  which  he  has  not,  of  speaking  what  every  tolerably 
well-informed  man  knows  to  be  true.  Reflect  what  kind  of  a  world 
this  was  when  the  disciples  of  Christ  undertook  to  reform  it,  and  com 
pare  it  with  the  condition  in  which  their  teachings  have  put  it.  In 
its  mighty  metropolis,  the  center  of  its  intellectual  and  political  power, 
the  best  men  were  addicted  to  vices  so  debasing  that  I  could  not  even 
allude  to  them  without  soiling  the  paper  I  write  upon.  All  manner 
of  unprincipled  wickedness  was  practiced  in  the  private  life  of  the 
whole  population  without  concealment  or  shame,  and  the  magistrates 
were  thoroughly  and  universally  corrupt.  Benevolence  in  any  shape 
was  altogether  unknown.  The  helpless  and  the  weak  got  neither 
justice  nor  mercy.  There  was  no  relief  for  the  poor,  no  succor  for 
the  sick,  no  refuge  for  the  unfortunate.  In  all  pagandom  there  was 
not  a  hospital,  asylum,  almshouse,  or  organized  charity  of  any  sort. 
The  indifference  to  human  life  was  literally  frightful.  The  order  of 
a  successful  leader  to  assassinate  his  opponents  was  always  obeyed  by 
his  followers  with  the  utmost  alacrity  and  pleasure.  It  was  a  special 
amusement  of  the  populace  to  witness  the  shows  at  which  men  were 
compelled  to  kill  one  another,  to  be  torn  in  pieces  by  wild  beasts,  or 
otherwise  "butchered,  to  make  a  Roman  holiday."  In  every  province 
paganism  enacted  the  same  cold-blooded  cruelties;  oppression  and 
robbery  ruled  supreme  ;  murder  went  rampaging  and  red  over  all  the 
earth.  The  Church  came,  and  her  light  penetrated  this  moral  dark 
ness  like  a  new  sun.  She  covered  the  globe  with  institutions  of 
mercy,  and  thousands  upon  thousands  of  her  disciples  devoted  them 
selves  exclusively  to  works  of  charity  at  the  sacrifice  of  every  earthly 
interest.  Her  earliest  adherents  were  killed  without  remorse — be 
headed,  crucified,  sawed  asunder,  thrown  to  the  beasts,  or,  covered 
with  pitch,  piled  up  in  great  heaps  and  slowly  burned  to  death.  But 
her  faith  was  made  perfect  through  suffering,  and  the  law  of  love  rose 
in  triumph  from  the  ashes  of  her  martyrs.  This  religion  has  come 
down  to  us  through  the  ages,  attended  all  the  way  by  righteous 
ness,  justice,  temperance,  mercy,  transparent  truthfulness,  exulting 
hope,  and  white-winged  charity.  Never  was  its  influence  for  good 
more  plainly  perceptible  than  now.  It  has  not  converted,  purified, 
and  reformed  all  men,  for  its  first  principle  is  the  freedom  of  the 
human  will,  and  there  are  those  who  choose  to  reject  it.  But  to  the 
mass  of  mankind,  directly  and  indirectly,  it  has  brought  uncounted 
benefits  and  blessings.  Abolish  it — take  away  the  restraints  which  it 


96  MISCELLANEOUS. 

imposes  on  evil  passions — silence  the  admonitions  of  its  preachers — 
let  all  Christians  cease  their  labors  of  charity — blot  out  from  history 
the  records  of  its  heroic  benevolence — repeal  the  laws  it  has  enacted 
and  the  institutions  it  has  built  up — let  its  moral  principles  be  aban 
doned  and  all  its  miracles  of  light  be  extinguished— what  would  we 
come  to  ?  I  need  not  answer  this  question  :  the  experiment  has  been 
partially  tried.  The  French  nation  formally  renounced  Christianity, 
denied  the  existence  of  the  Supreme  Being,  and  so  satisfied  the  hun 
ger  of  the  infidel  heart  for  a  time.  What  followed  ?  Universal  de 
pravity,  garments  rolled  in  blood,  fantastic  crimes  unimagined  before, 
which  startled  the  earth  with  their  sublime  atrocity.  The  American 
people  have,  and  ought  to  have,  no  special  desire  to  follow  that  terrible 
example  of  guilt  and  misery. 

It  is  impossible  to  discuss  this  subject  within  the  limits  of  a  review. 
No  doubt  the  effort  to  be  short  has  made  me  obscure.  If  Mr.  Inger- 
soll  thinks  himself  wronged,  or  his  doctrines  misconstrued,  let  him 
not  lay  my  fault  at  the  door  of  the  Church,  or  cast  his  censure  on  the 
clergy. 

"  Adsum  qui  fed,  in  me  convertite  ferrum." 

J.  S.  BLACK. 


LEGISLATIVE    OATH.— CONSTITUTIONAL    CONVENTION, 
MARCH  10,  1873. 

THE  convention  having  resolved  itself  into  the  Committee  of  the 
Whole  on  the  report  of  the  Committee  on  Legislation,  Mr.  Black  rose 
and  spoke  as  follows  : 

MR.  CHAIRMAN  :  This  is  a  subject  upon  which  I  speak  with  great 
reluctance.  But  I  am  deeply  anxious  about  it.  I  do  most  devoutly 
believe  that  the  destiny  of  this  Commonwealth,  and  perhaps  that  of  the 
whole  country,  depends  upon  the  decision  to  which  this  convention 
may  come.  I  beg  a  brief  hearing. 

It  will  be  admitted  that  the  legislative  function  is  by  far  the  most 
important  one  in  any  free  government.  It  is  the  supreme  power  of 
the  State.  All  others  are  insignificant  in  comparison  to  it,  inasmuch 
as  all  the  others  are  bound  to  obey  its  will.  The  Executive  is  abso 
lutely  controlled  by  it  in  all  the  details  of  his  administration.  It  marks 
out  the  path  in  which  he  shall  walk,  and  it  is  able  to  punish  him 
severely  for  any  departure  from  it.  The  Legislature  can  not  appoint 
the  judges  ;  but  it  can  do  more,  it  can  command  them  what  they  shall 
do  after  they  are  appointed.  All  the  legal  justice  we  get  is  manufact 
ured  at  the  seat  of  government  and  sent  down  in  bulk  to  the  courts, 
where  it  is  distributed  among  the  people  according  to  the  wants  and 


MISCELLANEOUS.  97 

merits  of  each  individual.  The  Legislature  regulates  the  practice  of 
the  courts,  makes  and  unmakes  the  rules  of  evidence,  and  furnishes 
the  standard  of  decision  for  every  cause.  It  defines  all  public  offenses, 
and  supplies  the  remedy  for  every  private  wrong.  All  rights  and  all 
obligations  are  protected  and  enforced  in  the  way  that  it  prescribes, 
and  can  not  be  either  protected  or  enforced  at  all  without  its  aid  and 
assistance. 

The  members  of  the  Legislature  are  the  custodians  and  trustees  of 
all  public  property.  They  can  sell  it,  or  give  it  away,  or  they  can 
increase  it  by  making  additional  purchases.  The  taxing  power  enables 
them  to  descend  as  deep  as  they  please  into  the  pockets  of  the  people 
of  every  class,  and  it  has  absolute  control,  and  appropriates  all  the 
revenue  after  it  is  collected. 

What  is  a  still  higher  consideration,  they  are  the  guardians  of  pub 
lic  morality.  It  depends  upon  them  whether  virtue  shall  be  promoted, 
or  vice  and  crime  be  encouraged.  The  theory  is  that  the  Legislature, 
being  the  supreme  power  of  the  State,  commands  what  is  right  and 
prohibits  what  is  wrong,  and,  in  a  certain  sense,  the  mere  command  or 
prohibition  does  of  itself  make  it  right  or  wrong.  What  we  are  taught 
in  the  Bible  is  certainly  true,  that  they  who  frame  iniquity  into  a  law, 
compel  the  people  to  become  workers  of  iniquity. 

The  time  was,  Mr.  Chairman,  when  the  State  of  Pennsjlvania, 
then  a  mere  colony,  containing,  perhaps,  less  than  fifty  thousand 
inhabitants,  had  a  reputation  throughout  the  earth  for  independence, 
justice,  peace,  and  good  order — for  everything  that  goes  to  make  up 
the  happiness  of  an  organized  society.  There  was  no  portion  of  the 
world  from  which  the  eyes  of  the  best  and  wisest  men  were  not  turned 
in  admiration  toward  this  community.  All  this  resulted  from  the 
wise  and  just  system  of  laws  adopted  by  the  illustrious  founder  of  the 
colony.  We  lost  our  character  as  fast  as  we  abandoned  the  principles 
upon  which  the  early  settlers  conducted  their  legislation.  As  we  can 
trace  the  grandeur,  the  honor,  the  high  reputation  of  the  State  to  the 
just  laws  of  the  earliest  time,  so  we  can  read  the  history  of  her  shame 
and  her  misfortunes  in  the  statute-books  of  a  later  period.  If  we  can 
now  but  unite  the  high  tone  of  public  morality  which  pervaded  our 
legislation  in  the  better  days  of  the  State  with  the  wealth  and  science 
of  the  present  generation,  then  you  may  hope  to  see  this  Common 
wealth  set  higher  than  ever,  the  envy  and  the  example  of  all  the  world. 
Without  infusing  into  our  new  Constitution  something  which  will 
have  that  effect,  at  least  in  degree,  our  institutions  must,  before  a  very 
long  time,  rot  to  pieces. 

What  we  want  above  all  things  upon  the  earth,  is  honest  legislation; 
and  when  I  say  we  want  it,  I  use  the  word  in  the  double  sense  of  need 
ing  it  and  lacking  it. 

After  all  that  has  been  said  upon  this  floor,  it  can  not  be  denied 
7 


98  MISCELLANEOUS. 

that  the  Legislature  of  the  State  of  Pennsylvania  has  habitually  and 
constantly,  for  the  last  twenty-five  years  or  more,  betrayed  the  trust 
reposed  in  its  members  ;  and  this  has  gone  so  far  that  we  must  have 
reform  if  we  would  not  see  our  institutions  perish  before  our  eyes. 
The  horrible  character  and  extent  of  the  evil  will  be  appreciated  when 
you  recall  the  solemn  words  of  the  gentleman  from  Dauphin  (Mr. 
MacVeagh),  the  chairman  of  the  Committee  on  Legislature.  His  posi 
tion  in  this  convention,  to  say  nothing  of  his  character  and  conscience, 
would  make  him  extremely  cautious  not  to  be  guilty,  even  of  the 
slightest  exaggeration,  upon  so  grave  and  important  a  topic.  He  told 
us  that  corruption  of  the  Legislature  was  a  cancer  at  the  heart  of  the 
State,  which  was  eating  its  very  life  away.  Another  gentleman,  the 
delegate  from  Erie  (Mr.  Walker),  without  intending  to  be  at  all  con 
demnatory,  but  rather  the  reverse,  declared  that  it  was  no  use  to  swear 
the  members  of  the  Legislature,  because  they  were,  to  his  certain 
knowledge,  so  utterly  degraded  that  they  would  take  the  oath  and  then 
immediately  lay  perjury  upon  their  souls,  without  scruple  and  without 
hesitation.  I  believe  him,  for  he  certainly  knows  whereof  he  affirms. 
The  evil  fame  of  this  thing  has  gone  forth  through  the  length  and 
breadth  of  the  country,  insomuch  that  the  gentleman  from  Indiana 
(Mr.  Harry  White),  the  chairman  of  the  Committee  on  Legislation, 
vouches  for  this  statement  :  That  when  one  of  his  colleagues  in  the 
Senate  was  traveling  in  Connecticut,  and  it  became  known  that  he 
was  a  member  of  our  Legislature,  that  fact  alone  raised  a  presumption 
against  his  honesty  so  violent  that  there  was  some  hesitation  about 
letting  him  go  into  an  unoccupied  room,  least  the  portable  property  to 
be  found  there  might  disappear  when  he  went  out !  There  was  a  time 
when  membership  of  our  State  Legislature  was  a  passport  to  honor  and 
admiration  everywhere,  from  a  Parisian  drawing-room  to  the  cottage 
of  a  peasant.  Now  that  same  Legislature  is  a  stench  in  the  nostrils 
of  the  whole  world. 

There  are  about  seventeen  gentlemen  on  this  floor  who  were  for 
merly  members  of  the  Legislature.  Of  course  they  passed  through 
the  furnace  of  that  temptation  without  the  smell  of  fire  upon  their  gar 
ments.  While  they  have  no  sympathy  with  crime,  they  must  naturally 
be  anxious  to  make  the  best  defense  they  can  for  the  reputation  of 
that  body  to  which  they  once  belonged.  But,  instead  of  a  defense,  all 
they  can  do  is  to  hang  their  heads  and  acknowledge,  with  shame  and 
sorrow,  that  the  accusations  are  true. 

The  cry  against  this  corruption  comes  up,  not  only  from  every  part 
of  this  House,  but  from  every  quarter  of  the  Commonwealth.  It  is 
borne  to  us  on  the  wings  of  every  wind.  In  his  speech  of  this  morn 
ing,  the  gentleman  from  Indiana  (Mr.  Harry  White)  acknowledged  that 
the  universal  demand  for  a  reform  of  these  abuses  had  brought  this 
convention  together,  and  without  that  it  never  would  have  been  called. 


MISCELLANEOUS.  99 

Nor  is  it  a  mere  popular  clamor.  It  is  founded  upon  incontestable 
facts  which  have  passed  into  the  domain  of  history,  and  will  stand 
there  forever. 

As  long  ago  as  1836  the  Bank  of  the  United  States  pushed  its 
charter  through  the  Legislature,  partly  by  direct  bribery  and  partly  by 
a  base  combination  of  private  interests,  which  were  openly  and  shame 
lessly  avowed  upon  the  face  of  the  bill  itself.  The  speculation  ex 
ploded  in  the  course  of  a  short  time  ;  but  it  scattered  destruction  every 
where,  and  brought  desolation  to  a  thousand  firesides.  It  disgraced 
the  character  of  the  State  ;  destroyed  her  credit ;  reduced  her  public 
securities  to  forty  cents  on  the  dollar  ;  branded  her  with  repudiation, 
and  made  her  name  a  hissing  by-word  among  all  the  nations.  The 
perpetrators  of  that  atrocious  outrage  were  never  called  to  any  account, 
and  their  impunity  was  an  invitation  to  all  others  to  go  and  do  like 
wise.  For  years  afterward,  the  other  banks,  combining  themselves 
together,  corrupted  the  Legislature  and  robbed  the  public  according 
to  the  statutes  in  such  case  made  and  provided. 

In  process  of  time  another  class  of  corporations  grew  up,  composed 
of  more  adventurous  men  with  larger  capital  and  with  a  more  plausi 
ble  claim  to  public  favor. 

I  think  that  everybody  who  has  looked  at  the  history  of  our  rail 
road  system  will  admit  that  in  its  original  organization  it  was  intended 
for  good  and  proper  purposes.  It  promised  necessary  improvements 
which  could  not  have  been  made  in  any  other  way.  One  of  them, 
organized  to  make  a  road  from  Harrisburg  to  Pittsburg,  undertook 
the  duty  under  a  charter  every  part  of  which  is  marked  with  cautious 
wisdom.  If  that  company  had  been  kept  within  the  limits  originally 
assigned  to  it,  its  career  must  have  been  entirely  beneficent.  But  its 
organization  gave  it  an  influence  upon  the  Legislature  which  it  used 
unsparingly.  It  swallowed  up  nearly  all  the  property  that  the  State 
ever  had.  It  took  it  substantially  as  a  gift ;  the  five  or  six  millions  it 
paid  was  no  consideration  for  the  fifty  or  sixty  millions  it  got.  But 
that  is  not  all ;  the  gift  of  this  immense  domain  was  followed  by  a 
surrender,  upon  the  part  of  the  Commonwealth,  of  her  right  to  collect 
her  own  revenue,  amounting  to  millions  more,  and  which  belonged  to 
her  as  much  as  the  purse  in  your  pocket  belongs  to  you. 

Mr.  CUTLER  :  My  friend  alludes  to  the  repeal  of  the  tonnage-tax. 

Mr.  BLACK  :  I  do  ;  the  learned  gentleman  understands  me  rightly. 
I  refer  to  that  fatal,  that  perfidious  statute  which  the  Legislature,  the 
lobby,  and  the  railroad  company  conspired  to  pass,  disarming  the  State 
of  her  just  right  to  collect  the  duty,  which  was  her  own,  of  three 
mills  upon  each  ton  of  produce  carried.  It  was  a  terrible  wrong  ;  for 
it  ground  the  face  of  labor  to  pour  a  great  stream  of  wealth  into  the 
imperial  treasury  of  a  corporation  which  had  no  claim  of  right  to  it. 
By  such  dereliction  of  duty  on  the  part  of  the  Legislature,  that  cor- 


100  MISCELLANEOUS. 

poration  lias  grown  so  mighty  that  its  little  finger  is  thicker  than  the 
loins  of  the  Commonwealth  which  created  it.  I  do  not  say  that  it 
bestrides  your  narrow  State  like  a  Colossus,  for  the  ancient  Colossus  of 
Rhodes  was  but  the  image  of  a  pigmy  in  comparison  to  this  Colossus 
of  railroads.  Her  stride  is  across  the  continent  from  ocean  to  ocean. 
Her  head  is  in  the  clouds,  and  the  arms  of  her  gigantic  power  stretch 
out  on  either  side  from  one  horizon  to  the  other. 

I  hope  my  very  good  and  most  amiable  friend  from  the  city  (Mr. 
Cuyler)  will  take  no  exception  to  what  I  am  saying.  I  would  fain 
speak  no  evil,  either  of  him  or  his  clients.  I  know  that  he  never 
tampered  with  the  Legislature,  and  never  advised  anybody  else  to  do 
so.  On  his  brow  such  a  shame  as  that  would  be  a  shame  to  sit.  Nor 
am  I  complaining  of  the  corporators  themselves.  I  will  take  it  for 
granted,  if  he  asserts  it,  that  there  is  not  a  man  belonging  to  the 
Pennsylvania  Railroad  that  would  not  run  away  from  any  proposition 
to  make  money  for  it  or  by  it.  He  may  say,  if  he  pleases,  that  they 
have  impoverished  themselves  by  going  about  to  do  good  for  the  pub 
lic,  or  that,  if  they  have  a  little  more  than  their  share  of  wealth,  it  has 
been  thrust  upon  them  against  their  will.  But  this  I  do  say,  that  the 
several  Legislatures  which  have  stripped  me  and  my  fellow-citizens  of 
our  just  rights,  to  clothe  this  corporation  with  imperial  power,  were 
treacherous  to  their  duty  and  basely  unfaithful  to  their  high  trusts. 

Other  corporations  have  powers  similarly  bestowed  and  nearly  as 
great.  Four  of  them  have  had  the  advantage  of  the  loose  legislation 
at  Harrisburg,  so  as  to  secure  monopolies  a  thousand  fold  more  op 
pressive  than  that  which  made  the  name  of  Sir  Giles  Overreach  infa 
mous  in  the  dramatic  literature  of  England.  What  was  the  exclusive 
privilege  of  selling  sweet  wines  in  the  reign  of  Elizabeth  compared  to 
the  power  which  puts  its  own  price  upon  every  basketful  of  anthracite 
coal  that  is  consumed  in  a  country  like  this  ? 

All  of  the  companies  represented  in  this  body — nay,  my  friend  on 
the  left  (Mr.  Gowen)  need  not  protest.  I  do  not  say  that  the  Reading 
Railroad  is  represented  here.  He  represents  the  same  constituent 
body  that  I  do  ;  he  is  as  faithful  as  I  am  ;  and  we  are  both  as  true  as 
steel.  But  I  have  some  idea  that  my  learned  friend  on  the  right  (Mr. 
Cuyler)  is  or  was  once  connected — most  honorably,  of  course — with 
the  Pennsylvania  Railroad  as  counsel. 

Mr.  CUYLER  :  Mr.  Chairman,  I  beg  leave  to  remind  my  learned 
friend  that  I  have  had  his  assistance  in  that  capacity. 

Mr.  BLACK  :  True  ;  those  gentlemen,  or  some  of  them,  have  been 
my  clients,  and  I  desire  to  speak  respectfully  of  them  for  that  reason, 
if  for  no  other.  They  have  been,  and  they  probably  will  be  again, 
when  they  have  a  perfectly  good  and  just  case,  and  want  a  thoroughly 
honest  lawyer.  [Laughter  and  applause.] 

But,  Mr.  Chairman,  the  unfaithfulness  of  the  Legislature  is  the  sub- 


MISCELLANEOUS.  101 

ject  with  which  we  are  dealing.  Let  us  pass  to  another  point  in  the 
arraignment.  After  the  corporators  were  through  with  her — the  State 
— she  had  left  to  her  about  nine  million  dollars — the  remnant  of  a  once 
magnificent  fortune.  That  sum  was  deposited  in  what  was  called  the 
sinking  fund.  It  was  placed  there  with  special  care.  It  was  hedged 
around  with  constitutional  interdicts.  It  was  declared  with  the  ut 
most  solemnity  in  the  fundamental  law  itself  that  it  should  be  applied 
to  no  other  purpose  than  the  payment  of  the  public  debt.  Yet  a  com 
bination  of  private  interests  was  organized  to  rob  the  State  of  this 
last  residuum.  A  ring  was  formed  ;  the  Legislature  and  the  lobby 
gave  it  their  united  sanction  ;  they  dived  into  the  sinking  fund  and  came 
up  with  the  nine  millions  in  their  hands.  The  grab  was  nearly  suc 
cessful  ;  it  was  defeated  only  by  the  interposition  of  the  Governor's  veto. 

These  are  only  a  few  of  the  instances  in  which  the  Legislature 
has  proved  treacherous.  I  have  not  mentioned  one  in  a  hundred. 
Nor  ha  ye  I  selected  the  worst  cases.  Let  any  gentleman  who  wants 
fuller  information  look  at  the  two  papers  made  by  Mr.  Jordan,  the 
late  Secretary. 

The  whole  system,  according  to  his  description  of  it,  is  saturated 
with  corruption  from  the  crown  to  the  toe.  It  has  gone  so  far  that 
the  veto-power  is  utterly  incapable  of  stopping  it.  He  declares  that, 
if  the  Governor  would  try  to  stop  it,  combinations  would  be  made 
against  him,  and  render  him  as  powerless  as  the  driver  of  a  runaway 
team  after  his  reins  are  broken. 

But  there  is  one  fact  stated  by  him  which  will  astound  you  when 
it  is  mentioned.  He  says  that  the  office  of  Treasurer  is  the  most 
lucrative  in  the  State.  Its  profits  must,  therefore,  exceed  the  enor 
mous  sums  received  by  the  officers  of  the  State-House  row  in  this 
city.  This,  he  says,  induces  a  regular  scramble  for  the  treasurership 
on  the  first  week  of  every  session ;  and  then  he  adds  that  the  votes 
which  elect  the  Treasurer  are  notoriously  bought  by  the  successful 
candidate.  The  significance  of  that  simple  statement  of  the  Secretary 
will  hardly  be  understood  without  a  little  reflection.  Remember  that 
the  Treasurer  is  paid  by  a  fixed  salary. 

Mr.  HOWARD  :  Five  thousand  dollars  per  annum. 

Mr.  BLACK  :  No  man  holding  that  office  can,  by  any  possibility, 
make  out  of  it  one  cent  beyond  the  five  thousand  dollars  allowed  him 
by  law,  without  being  guilty  of  some  act  as  dishonest  as  the  plainest 
stealing  that  ever  was  done  by  a  common  thief.  Yet,  somehow, 
the  Treasurer  of  the  State  gets  from  his  office  enough  to  buy  up 
a  majority  of  the  Legislature,  and,  after  making  all  the  deductions 
necessary  for  his  reimbursement  of  that  expense,  there  is  enough  left 
in  his  own  pocket  to  enrich  him  beyond  any  other  officer.  These 
things,  mind  you,  are  not  all  done  at  once.  The  Treasurer  does  not 
take  all  of  this  sum  at  one  grab  ;  nor  does  he  buy  up  the  members  by 


102  MISCELLANEOUS. 

wholesale.  He  has  to  make  a  separate  bargain  with  each  individual. 
If  you  could  suppose  one  of  these  Treasurers  to  be  convicted  of  every 
distinct  offense  that  he  has  been  guilty  of  in  a  year,  and  then  suppose 
him  to  be  sentenced  according  to  law,  upon  each  conviction,  what 
would  become  of  him  ?  At  the  most  moderate  calculation  you  can 
make,  it  would  take  him  at  least  fifteen  hundred  years  to  serve  his 
time  out  in  the  penitentiary  [laughter],  and  for  a  portion  of  that 
period  he  would  be  accompanied  by  a  majority  of  the  members  of  the 
Legislature.  [More  laughter.]  These  are  the  men  that  are  intrusted 
with  the  collection  and  expenditure  of  all  your  revenue,  with  the  con 
trol  of  all  your  public  affairs,  and  with  the  power  which  gives  or 
withholds  security  to  your  lives  and  property. 

But,  Mr.  Chairman,  I  do  not  know  that  we  ought  to  blame  the 
members  of  the  Legislature  too  severely.  Something  ought  to  be 
allowed  for  the  temptations  with  which  they  are  surrounded.  They 
walk  among  snares,  and  pitfalls,  and  man-traps.  In  fact,  they  do  not 
represent  us.  We  are  not  governed  by  the  men  we  send  there.  Our 
masters  are  the  members  of  the  lobby.  They  are  organized  into  a  third 
House,  whose  power  is  overshadowing  and  omnipotent.  They  propose 
the  laws  that  suit  themselves  and  the  interested  parties  who  send  them 
there.  The  other  Houses  simply  register  their  decrees.  That  our 
rights  and  liberties  should  be  in  such  hands  is  disgusting  in  the  ex 
treme,  for  they  are  generally  the  most  loathsome  miscreants  on  the 
face  of  the  earth. 

My  friend  from  Dauphin  (Mr.  MacVeagh)  spoke  of  legislation 
under  the  figure  of  a  stream,  which,  he  said,  ought  always  to  flow  with 
crystal  water.  It  is  true  that  the  Legislature  is  the  fountain  from 
which  the  current  of  our  social  and  political  life  must  run,  or  we  must 
bear  no  life ;  but,  as  it  now  is,  we  keep  it  merely  as  "  a  cistern  for 
foul  toads  to  knot  and  gender  in."  He  has  described  the  tree  of  lib 
erty,  as  his  poetic  fancy  sees  it,  in  the  good  time  coming,  when  weary 
men  shall  rest  under  its  shade,  and  singing  birds  shall  inhabit  its 
branches  and  make  most  agreeable  music.  But  what  is  the  condition 
of  that  tree  now  ?  Weary  men  do,  indeed,  rest  under  it,  but  they 
rest  in  their  unrest,  and  the  longer  they  remain  there  the  more  weary 
they  become.  And  the  birds — it  is  not  the  wood-lark,  nor  the  thrush, 
nor  the  nightingale,  nor  any  of  the  musical  tribe,  that  inhabit  the 
branches  of  our  tree.  The  foulest  birds  that  wing  the  air  have  made 
it  their  roosting-place,  and  their  obscene  droppings  cover  all  the  plains 
about  them  :  the  kite,  with  his  beak  always  sharpened  for  some  cruel 
repast ;  the  vulture,  ever  ready  to  swoop  upon  his  prey  ;  the  buzzard, 
digesting  his  filthy  meal,  and  watching  for  the  moment  when  he  can 
gorge  himself  again  upon  the  prostrate  carcass  of  the  Commonwealth. 
And  the  raven  is  hoarse  that  sits  there  croaking  despair  to  all  who 
approach  for  any  clean  or  honest  purpose. 


MISCELLANEOUS.  103 

Mr.  Chairman,  this  state  of  things  can  not  go  on  without  bringing 
us  to  utter  destruction.  It  is  getting  worse  and  worse,  and  our  insti 
tutions  must  utterly  perish  if  we  do  not  stop  this  mischief.  We  may 
preserve  the  forms  of  republican  government,  but  the  substance  will 
pass  away,  and  with  it  will  depart  all  that  is  perfect  in  politics,  all  that 
is  pure  in  morals,  all  that  makes  life,  liberty,  and  property  secure ;  all 
that  makes  existence  in  a  free  country  worth  having. 

Shall  we  stand  by  and  see  this  prodigious  ruin  rushing  down  upon 
us  without  an  effort  to  arrest  it  ?  No,  surely  not.  But,  seeing  that 
we  are  sent  here  for  the  very  purpose  of  stopping  it,  we  will  perform 
our  duty,  and,  with  the  help  of  the  living  God,  we  will  succeed  in  our 
mission.  We  will  deliver  our  good  old  Commonwealth  from  the  body 
of  this  death. 

But  how  shall  that  end  be  accomplished  ?  I  admit  that  it  is  pos 
sible  to  answer  this  question  in  different  ways,  when  we  come  to  the 
details  of  the  remedy.  But  the  common  sense  and  common  honesty 
of  the  people  as  represented  here  will  make  us  unanimous  at  least  on 
this — that  the  remedy  shall  be  efficient,  radical,  thorough,  and  com 
plete.  We  will  not  insult  our  constituents  by  offering  them  mere  pal 
liatives  for  the  hideous  malady  with  which  they  are  afflicted.  They 
know  and  we  know  that  this  is  not  a  case  for  the  quackery  of  half 
hearted  measures.  We  must  cut  the  cancer  out.  A  surgical  opera 
tion  on  a  vital  part  of  the  body,  if  it  be  not  entirely  successful,  always 
hastens  the  death  of  the  patient. 

I  am  thoroughly  persuaded  that  there  is  some  fatal  defect  in  our 
American  system  of  legislation .  It  has  failed  ignominiously  wherever 
it  has  been  tried.  It  is  not  only  here  in  Pennsylvania  that  we  have 
rotten  representatives  and  dishonest  legislation.  The  same  evil  is 
found  in  the  other  States.  It  exists  in  its  worst  form  and  operates 
on  its  grandest  scale  in  the  Legislature  of  the  Union.  What  is  the 
cause  ? 

The  President  of  this  Convention  (Mr.  Meredith)  struck  the  point 
when,  speaking  of  the  misconduct  of  members  of  the  Legislature,  he 
said  that  it  was  because  they  were  not  responsible,  and  nobody  was 
responsible  for  them.  Washington  said  long  ago  that  irresponsible 
power  could  never  be  safely  trusted  in  human  hands.  By  irrespon 
sible  power  I  mean  power  which  may  be  abused  without  calling  down 
any  punishment  upon  the  heads  of  those  who  commit  the  abuse.  In 
this  respect  all  our  Constitutions  are  anomalous.  They  are  a  series  of 
commands  without  any  sanction  to  enforce  them.  This  is  particularly 
and  emphatically  true  with  regard  to  those  who  execute  the  supreme 
power  of  making  your  laws.  You  trust  the  members  of  your  Legis 
lature  implicitly.  The  framers  of  the  Federal  Constitution,  who  were 
imitated  in  all  the  States,  seem  to  have  thought  of  legislative  corrup 
tion  as  the  Spartans  did  of  parricide,  that  it  was  an  impossible  crime. 


101  MISCELLANEOUS. 

The  Supreme  Court  of  the  United  States,  in  Fletcher  vs.  Peck,  in 
fluenced  by  this  delusion  because  it  was  embodied  in  the  Constitution, 
declared  that  they  did  not  believe  in  the  corruption  of  a  State  Legisla 
ture,  though  it  was  incontestably  proved,  admitted  by  the  parties,  and 
found  to  be  true  by  a  special  verdict  in  the  very  case  before  them. 
Now,  if  anything  is  established  by  all  human  experience,  it  is  that  no 
rule  of  action,  no  law,  no  commandment  will  ever  be  observed  by 
men  who  can  promote  their  interests  or  gratify  their  passions  by 
breaking  it,  unless  they  are  deterred  by  the  fear  of  retributive  justice. 
If  you  desire  men  to  do  right,  you  must  punish  them  for  doing  wrong. 
This  may  seem  like  a  low  view  of  human  nature,  but  we  can  not  help 
it ;  we  are  as  we  are  made.  Men  are  not  equal  to  angels,  and  even  the 
angels  fell.  In  all  cases  every  rule  of  conduct  is  coupled  with  a  pen 
alty  for  its  violation — that  is  in  all  but  ours,  and  it  is  true  of  ours  in 
all  except  the  fundamental  and  most  important  part  of  it.  This  is 
also  the  principle  which  runs  through  the  divine  law.  Almighty  God, 
who  created  the  heart  of  man,  understood  the  impulses  which  would 
govern  it,  and  he  annexed  a  sanction  to  every  one  of  his  command 
ments.  There  is  no  brutum  fulmen  in  the  Bible.  The  .first  law  that 
ever  was  made  for  the  regulation  of  human  conduct  is,  in  this  respect, 
the  model  upon  which  every  other  has  been  framed:  "On  the  day 
thou  eatest  thereof  thou  shalt  surely  die."  And  if  Satan  had  not 
managed  to  convince  our  first  parents  that  the  penalty  would  not  be 
inflicted,  the  fruit  of  the  forbidden  tree  would  never  have  been 
tasted. 

Can  there  be  any  reasonable  doubt  that  corruption  reigns  in  the 
Legislatures  of  all  the  States  and  in  Congress,  for  the  reason  that  it 
can  be  practiced  with  perfect  impunity  ?  Can  you  or  do  you  expect 
anything  else  from  a  body  of  men  whom  you  surround  with  tempta 
tions  of  every  kind  to  lure  them  into  crime  at  the  same  time  that  you 
tell  them  they  shall  suffer  nothing  if  they  commit  it  ?  Such  a  system 
can  not  and  it  will  not  come  to  good.  You  might  as  well  hope  to 
gather  grapes  from  thorns  or  figs  from  thistles. 

In  deciding  upon  the  nature  of  the  punishment  which  these  great 
criminals  ought  to  suffer,  we  must  not  consult  our  blood  but  our  judg 
ment.  Our  new  laws  must  have  no  ex  post  facto  operation,  and  the 
penalties,  though  certain,  must  be  moderate  even  for  future  offenses. 
No  sentiment  of  vengeance  must  seek  its  gratification  here.  If  the 
honest  citizens  of  the  State  who  have  been  so  basely  betrayed  by  these 
miscreants  would  obey  the  impulse  of  their  natural  indignation,  and 
had  infinite  power  to  work  their  will  upon  them,  they  would  set  them 
upon  the  remotest  battlement  of  God's  creation — far  out  upon  the 
borders  of  chaos  and  old  night — and  then  lash  them  naked  around  the 
circumference  of  the  universe  through  all  eternity.  But  human  pun 
ishment  can  be  inflicted  only  for  the  purpose  of  defending  society ; 


MISCELLANEOUS.  105 

all  beyond  that  must  be  left  in  the  hands  of  divine  justice  :  "Venge 
ance  is  mine,  saith  the  Lord  ;  I  will  repay." 

We  must  look,  therefore,  to  see  by  what  means  we  can  prevent 
these  crimes,  and  confine  ourselves  solely  to  defensive  measures. 
While  we  should  avoid  that  kind  of  mercy  to  the  guilty  which  is 
cruelty  to  the  innocent,  we  must  not  lay  a  hostile  finger  on  the  most 
atrocious  criminal,  except  in  so  far  as  that  may  be  necessary  to  reform 
him  or  to  deter  others.  To  do  even  that  would  not  be  either  wise  or 
just,  unless  we  accompany  it  by  some  regulation  which  will  relieve 
them  from  the  temptations  to  which  they  are  now  exposed.  It  would 
not  be  fair  to  surround  members  of  the  Legislature  with  snares  set 
for  their  virtue,  and  then  punish  them  when  they  lose  it.  Let  us 
weaken  the  motives  to  evil  at  the  same  time  that  we  strengthen  those 
which  impel  toward  right.  So  may  the  preponderance  always  be  on 
the  proper  side  of  the  scale. 

I  will  now  enumerate  the  measures  in  which  we  propose  to  embody 
these  vital  reforms.  I  hope  the  convention  will  believe,  as  I  do,  that 
if  adopted  they  may  save  us  from  the  greatest  of  all  public  calamities, 
and  at  the  same  time  give  no  trouble  or  even  inconvenience  to  any 
honest  and  upright  man,  whether  in  or  out  of  the  Legislature  : 

1.  Confine  the  power  of  the  Legislature  within  limits  as  narrow  as 
possible  consistently  with  a  proper  regulation  of  our  affairs. — This 
can  not  be  done  to  any  great  extent.     A  free  people  must  have  legis 
lation,  and  the  freer  they  are  the  more  they  need  it,  for  there  can  be 
no  liberty  without  law.    The  various  opinions  and  diversified  interests 
of  such  a  people  as  are  ours,  multiply  the  laws  that  are  necessary  for 
their  government.     After  limiting  the  power  of  the  Legislature  as 
much  as  you  can,  you  must  still  leave  it  in  possession  of  a  great  deal. 
Indeed,  you  can  scarcely  diminish  it  in  any  perceptible  degree  ;  and 
what  is  left  in  its  hands  is  liable  to  be  as  frightfully  abused  as  if  none 
was  taken  away. 

2.  Prescribe  certain  forms  of  proceeding  which  will  insure  de 
liberation  and  publicity. — I  need  not  specify  these  forms.     You  find 
them  in  the  report.     They  require  a  bill  to  be  reported  by  a  commit 
tee,  and  then  read  through  and  through,  not  once  or  twice,  but  three 
times  in  each  House  ;  the  final  vote  to  be  taken  by  yeas  and  nays,  and 
recorded  ;  each  bill  to  have  but  one  object,  and  that  expressed  in  its 
title  ;  every  law  to  be  preceded  by  a  preamble  expressing  the  reasons 
of  the  Legislature  for  assenting  to  it ;  the  final  passage  of  the  law  to 
be  concurred  in  by  a  majority  of  members  elected  to  both  Houses, 
and,  after  passage,  the  title  of  it  to  be  publicly  read  immediately 
before  it  is  signed  by  the  Speaker.     These  forms  will  do  much  to  pre 
vent  hasty  and  thoughtless  legislation,  and  make  it  much  more  diffi 
cult  than  it  is  now  for  members  to  commit  frauds  upon  one  another 
by  clandestinely  procuring  the  passage  of  bills  which  a  majority  do 


106  MISCELLANEOUS. 

not  consent  to.  But  they  will  not  throw  any  serious  impediment  in 
the  way  of  injurious  legislation  to  which  a  majority  of  the  members 
can  be  induced  to  consent.  The  most  iniquitous  laws  we  are  cursed 
with  have  been  passed  without  resort  to  the  tricks  which  these  forms 
are  intended  to  prevent.  Corrupt  combinations  are  made  every  day 
which  carry  a  majority,  with  their  eyes  wide  open,  through  all  frauds, 
and,  as  Secretary  Jordan  tells  us,  strong  enough  to  break  down  the 
Executive,  armed  though  it  be  with  the  veto.  While,  therefore,  these 
provisions  are  salutary  and  desirable,  they  are  not  sufficient  of  them 
selves  to  save  us.  I  proceed  to  show  what  more  seems  to  be  necessary. 

3.  Define  bribery  so  as  to  include  all  sorts  of  corruption. — When 
a  member  is  to  be  corrupted,  he  is  not  in  one  case  out  of  a  hundred 
offered  money  in  the  plain  form  of  a  quid  pro  quo.     Almost  never  is 
a  contract  made  in  words  that  the  vote  shall  be  sold  for  a  certain  price 
paid  down  as  promised.     The  money  is  presented  as  a  gracious  gift  or 
as  a  testimonial  of  the  donor's  affection — it  is  slipped  into  the  pocket 
of  the  member  without  a  word,  or  it  is  placed  under  his  pillow,  where 
he  finds  it.     Most  commonly  the  object  is  reached  by  a  wider  circum 
bendibus.     The  member  is  employed  as  attorney  for  the  party  interested 
in  his  vote,  and  the  bribe  comes  in  the  shape  of  a  fee  for  other  services. 
It  is  not  at  all  unusual  for  members  who  are  considered  respectable  to 
let  themselves  be  bought  in  this  way.     Still  oftener  the  end  is  accom 
plished  by  giving  the  member  an  interest  in  the  subject-matter  whose 
value  is  to  be  affected  by  his  vote.     The  stock  of  a  corporation  is  dis 
tributed  "where  it  will  do  most  good/7  or  the  member  is  taken  as  a 
partner  into  some  speculation  which  he  is  to  promote  by  procuring 
legislation.     In  a  thousand  ingenious  ways  it  may  be  made  his  private 
interest  to  disregard  his  public  duty.     All  these  ways  are  equally  cor 
rupt,  and  the  people  owe  it  to  themselves  to  stop  them. 

4.  Extinguish  the  lobby  at  once  and  forever,  by  making  all  pri 
vate  solicitation  of  members  by  interested  parties  or  their  agents  a 
criminal  offense. — This  is  so  obviously  proper  and  right  that  it  can 
hardly  be  necessary  to  vindicate  it.     The  hirelings  of  corruption  have 
organized  themselves  into  a  "  third  house,"  they  have  usurped  the 
power  which  the  Constitution  gives  to  the  other  two  :  they  exercise 
the  supreme  legislative  authority  of  the  State  ;  the  Senate  and  House 
of  Representatives  are  degraded  into  their  mere  tools,  and  I  repeat 
that  they  are  the  most  loathsome  wretches  that  are  suffered  to  live  in 
the  world.     All  men  agree  to  this  as  a  matter  of    fact.     Nobody 
doubts  the  omnipotent  power  of  the  "third  house,"  or  the  evil  pur 
poses  for  which  it  is  used,  nor  has  any  one  ever  suggested  the  least 
possible  good  that  can  result  from  its  continued  existence.     The  total 
abolition  of  this  "third  house"  is  demanded  not  only  to  secure  the 
weak  from  temptation,  but  as  a  measure  of  protection  to  the  strong 
and  upright  from  insult  and  annoyance.     By  adopting  it  you  purify 


MISCELLANEOUS.  107 

the  Legislature  instantly  and  restore  the  honor  of  your  government ; 
for  there  never  has  been  any  bribery,  corruption,  or  other  improper 
influence  which  did  not  come  privately  and  secretly  in  that  way. 
Let  no  man  say  that  we  desire  to  cut  off  communication  between 
the  representative  and  his  constituents.  All  public  means  of  ex 
pressing  his  opinions  and  wishes  are  to  be  left  open ;  the  right  of 
petition  shall  be  as  sacred  as  ever  ;  the  privilege  of  being  openly  heard 
before  committee  shall  be  carefully  secured  ;  the  right  of  the  people  to 
assemble  and  speak  their  will,  or  to  discuss  their  affairs  through  the 
press,  shall  not  be  denied.  The  representative  ought  to  be  controlled 
in  some  measure  at  least  by  an  enlightened  public  opinion,  but  it  is  not 
necessary  for  that  purpose  that  he  should  open  his  ear  to  the  insult 
ing  whispers  of  the  miscreants  who  now  dog  him  up  and  down  the 
board-walk,  and  follow  him  to  his  lodgings,  and  stand  behind  his  chair 
when  he  votes. 

5.  Make  all  fraudulent  acts  of  the  Legislature  void. — As  the  law  is 
now  held  by  all  the  courts,  a  legislative  grant,  whether  of  money,  lands, 
or  privileges,  is  sacred  and  inviolable,  no  matter  how  clearly  you  can 
prove  that  it  was  obtained  by  fraud,  deception,  or  bribery.     This  doc 
trine  was  established  seventy  years  ago  by  the  Supreme  Court  of  the 
United  States  in  Fletcher  vs.  Peck.     The  case  itself  was  a  fraud  ;  it 
was  made  up  at  Boston  by  two  men  who  lived  in  Tennessee,  both  of 
them  having  the  same  interest  in  the  same  fraudulent  grant,  and  the 
counsel  who  pretended  to  argue  it  was  employed  and  paid  to  give  the 
cause  away.     This  is  not  publicly  known,  but  I  assert  it  on  the  author 
ity  of  Judge  Catron,  who  knew  the  parties  well,  and  was  often  told  by 
both  of  them  that  the  case  was  a  sham,  and  the  judgment  collusive. 
The  principle  apparently  decided  by  it  is  not  found  in  the  common 
law,  and  is  directly  in  conflict  with  common  sense  and  plain  justice. 
It  violates  all  the  analogies  of  our  jurisprudence.     Not  only  private 
grants  but  judicial  decrees  and  executive  concessions  are  pronounced 
mere  nullities  when  brought  into  contact  with  any  kind  of  corruption. 
Yet  the  grossest  fraud  upon  the  public  or  upon  individuals  when  com 
mitted  by  or  through  the  Legislature  is  consecrated  and  protected.     It 
has  wrought  intolerable  mischief.     It  gives  infinite  encouragement  to 
the  worst  form  of  public  immorality.     It  shelters  every  villain  of  a 
certain  class  who  can  get  away  with  his  booty  ;  and  stifles  inquiry  into 
the  worst  wrongs  by  making  it  practically  useless.     If  legislative  acts 
were  void  from  corruption,  what  man  or  what  corporation  would  think 
it  worth  while  to  pay  bribes  ?    We  can  and  ought  to  abolish  this  ab 
surd  and  iniquitous  principle.     Let  it  be  done,  with  such  reservations 
as  will  prevent  any  loss  to  innocent  people,  but  let  us  cease  to  pay  a 
premium  for  legislative  rascality. 

6.  Swear  or  affirm  every  member  before  lie  takes  Jiis  seat  that  lie 
will  not  only  support  but  obey  and  defend  the  Constitution  in  all 


108  MISCELLANEOUS. 

tilings. — The  oath  to  support  it,  required  by  the  Federal  Constitution, 
was  intended  as  a  mere  test  of  political  opinion,  to  exclude  the  ene 
mies  of  the  new  government  from  office.  To  support  does  not  mean 
to  obey.  You  support  the  church  when  you  rent  a  pew  and  pay 
the  preacher,  though  you  do  not  square  your  moral  conduct  by  its  pre 
cepts.  But  this  preliminary  oath  being  promissory  in  its  nature,  I  do 
not  think  it  just  to  make  the  subsequent  violation  of  it  punishable 
as  perjury.  Where  it  has  been  taken  in  good  faith,  with  pure  intent 
to  keep  it,  a  breach  of  the  promise  it  expresses  does  not  justify  a  charge 
of  false  swearing.  That  among  other  reasons  makes  it  necessary  that 
there  should  be  another  oath  or  affirmation  upon  which  perjury  can  be 
assigned. 

7.  Require  every  member  at  the  close  of  his  last  session  to  render 
an  account  of  his  stewardship  to  his  own  constituents  at  home.  — Make 
him  swear  or  affirm,  specifically,  that  he  has  obeyed  the  Constitution, 
that  he  has  not  listened  to  private  solicitation,  or  taken  any  bribe,  or 
knowingly  done  any  other  act  in  his  official  capacity  interdicted  by  the 
fundamental  law.  If  his  hands  are  clean,  he  will  be  willing  to  show 
them.  If  they  are  not,  and  he  declines  to  show  them,  the  public  can 
have  no  further  need  of  his  services,  and  he  should  not  be  eligible  to 
the  same  or  to  any  other  office.  The  necessity  of  taking  this  last  oath 
will  effectually  cut  him  off  from  all  intercourse  with  known  lobbyists, 
and  free  him  completely  from  improper  influences,  for  unless  he  is  a 
moral  monster,  he  will  not  do  a  thing  with  the  preconceived  determi 
nation  to  swear  that  he  has  not  done  it.  I  do  devoutly  believe  that 
this  measure,  connected  with  the  others  proposed,  will  make  our  legis 
lation  as  pure  as  it  was  in  the  days  of  William  Penn. 

In  conclusion,  let  me  call  the  attention  of  gentlemen  to  the  resem 
blance  between  these  provisions  and  those  which  prevail  in  analogous 
cases  of  a  private  nature.  A  member  of  the  Legislature  is  charged  with 
the  administration  of  the  most  important  trusts  known  among  men. 
If  anybody  should  be  held,  and  held  hard,  to  his  duty,  it  is  he.  Yet 
we  only  propose  to  enforce  his  obligations  by  the  same  means  which 
we  use  against  a  private  trustee.  When  an  executor,  administrator,  or 
guardian  takes  his  duty  upon  him,  you  swear  him  to  obey  the  laws. 
When  he  goes  out  you  compel  him  to  render  an  account,  on  oath,  in 
which  he  specifies  the  particular  acts  he  has  done,  and,  if  he  swears 
falsely,  you  indict  him  for  perjury.  And  if  he  serves  his  own  interests 
by  making  a  contract  in  fraud  of  his  cestui  que  trust,  you  hold  his  act 
to  be  void.  Why  should  not  the  great  trust  of  a  legislator  be  subject 
to  the  same  rules  ?  Is  it  because  you  are  willing  the  public  trust  shall 
be  betrayed,  but  desire  the  private  one  to  be  honestly  administered  ? 
This  will  hardly  be  the  answer  of  those  who  oppose  us.  What  it  will 
be  I  know  not. 


MISCELLANEOUS.  109 

A  GEEAT  LAWSUIT  AND  A  FIELD  FIGHT. 

"Chapters  of  Erie,  and  other  Essays."  By  Charles  F.  Adams,  Jr.,  and  Henry  Adams. 
Boston:  James  R.  Osgood  &  Co.  1871. 

"An  Inquiry  into  the  Albany  and  Susquehanna  Litigations  of  1869,  and  Mr.  David 
Dudley  Field's  Connection  therewith."  By  George  Ticknor  Curtis.  New  York:  D. 
Appleton  &  Co.  1871. 

IK  the  years  1869  and  1870  there  occurred  a  contest  for  the  control 
of  the  Albany  and  Susquehanna  Railroad  which,  in  some  of  its  feat 
ures,  is  among  the  most  remarkable  that  this  generation  has  known. 
It  concerned  vast  material  interests,  and,  from  peculiar  circumstances, 
engaged  an  amount  of  public  attention  not  often  bestowed  on  such 
subjects.  It  produced  a  long  series  of  litigations,  angry,  complicated, 
and  multifarious.  The  judicial  authorities  were  wholly  unequal  to 
the  task  of  settling  the  dispute  ;  for,  instead  of  composing  the  strife, 
their  intervention  only  intensified  it,  until  at  last  the  parties,  mutually 
scared  by  the  cross-fire  of  conflicting  injunctions  which  the  courts 
were  launching  at  all  alike,  sought  relief  in  the  more  peaceful  arbitra 
tion  of  pike  and  gun.  When  this  was  stopped  by  the  Executive,  the 
newspapers  took  up  the  war,  and  going  over  the  whole  ground  again, 
they  not  only  canvassed  the  rights  and  wrongs  of  the  parties,  but  as 
sailed  counsel  and  judges  with  most  unlimited  censure.  The  charac 
ter  of  one  gentleman  in  particular  (Mr.  David  Dudley  Field),  noted 
hitherto  and  honored  not  less  for  high  integrity  than  for  profound 
learning,  was  traduced  with  a  license  which  knew  no  bounds. 

The  two  books  whose  titles  stand  at  the  head  of  this  article  are 
chiefly  interesting  because  they  contain  the  opposing  views  of  two  very 
able  men  upon  the  whole  of  this  controversy  ;  and  the  recent  republi- 
cation  of  both,  with  notes  and  other  addenda,  is  a  new  appeal  to  the 
great  tribunal  of  public  opinion.  Before  final  judgment  we  propose 
to  say  a  few  words  more,  but,  being  nobody's  attorney,  and  represent 
ing  no  personal  interest,  we  must  be  considered  as  speaking  in  the 
character  of  amicus  curies. 

Mr.  Curtis's  great  advantage  over  Mr.  Adams,  and  indeed  over 
every  one  else  who  has  discussed  this  subject,  consists  in  the  high  tone 
of  his  essay  and  the  spirit  of  perfect  fairness  which  pervades  it  from 
beginning  to  end.  Though  a  great  master  of  rhetoric  (as  the  biogra 
pher  of  Webster  ought  to  be),  no  provocation  tempts  him  to  any  dis 
play  of  it  here ;  his  style  is  eminently  judicial ;  his  statements  are 
severely  accurate,  and  for  all  his  averments  he  quotes  chapter  and 
verse  in  a  way  which  makes  contradiction  hopeless.  His  only  apparent 
ambition  is  to  build  up  a  solid  wall  of  argument ;  he  constantly  tests 
its  perpendicular  with  the  plummet,  and  strikes  every  stone  with  the 
edge  of  his  trowel  to  make  sure  that  it  lies  firm  in  its  place. 

Mr.  Adams  is  an  hereditary  bondsman  to  the  truth  ;  by  his  blood 


110  MISCELLANEOUS. 

and  birth  he  owes  service  to  the  right,  and  if  he  flies  from  it  we  have 
a  warrant  to  reclaim  him  as  a  fugitive.  We  do  not  believe  that  he 
would  lend  the  authority  of  his  great  historical  name  to  a  willful  mis- 
statement,,  or  that  he  would  even  take  up  an  evil  report  against  his 
neighbor  and  help  to  propagate  it  for  the  mere  purpose  of  gratifying 
anybody's  malevolence.  But  his  intense  dislike  of  James  Fisk,  Jr., 
seems  to  have  unbalanced  his  judgment  upon  every  subject  with 
which  Fisk  has  the  remotest  connection.  This  is  the  one  masterless 
passion  which  sways  him  in  all  the  moods  and  tenses  of  his  thought. 
Fisk  is  his  bete  noire.  His  enmity  to  Fisk  is  extended  not  merely  to 
Jay  Gould,  Fisk's  partner  in  business,  but  it  embraces  all  Fisk's  asso 
ciates  in  the  management  of  the  Erie  Kailroad,  and  takes  in  every 
lawyer  who  has  ever  defended  his  rights  and  every  judge  who  has  ever 
allowed  him  to  use  the  legal  process  of  his  court.  The  moral  sense  of 
Mr.  Adams  has  been  offended,  perhaps  very  justly,  by  something  he  has 
seen  in  Fisk's  conduct  or  character  ;  and  his  indignation  has  become 
so  preternaturally  excited  that  he  likes  or  loathes  all  other  men  as 
they  happen  to  be  for  Fisk  or  against  him  in  any  of  his  contests, 
whether  right  or  wrong.  Inasmuch  as  Mr.  Adams  must  necessarily 
be,  and  is  without  doubt,  a  man  of  sound  moral  principles,  we  give 
this  as  the  only  rational  explanation  we  can  furnish  of  his  attack  upon 
Mr.  Field,  and  of  what  needs  explanation  quite  as  much,  his  idolatrous 
veneration  of  Kamsey  and  his  pronounced  admiration  of  Judge  Dar 
win  Smith's  decision  at  Eochester. 

It  was  not  necessary  for  Mr.  Curtis  to  tell  us  that  he  had  no  per 
sonal  knowledge  of  or  association  with  Mr.  James  Fisk,  Jr.,  or  his 
partner  Jay  Gould.  Nobody  would  have  suspected  that  grave  and 
learned  gentleman  of  any  close  companionship  with  a  man  so  outre, 
irregular,  and  eccentric  in  his  tastes  and  habits  as  Mr.  Fisk.  If  igno 
rance  of  Fisk  and  all  that  Fisk  inherits  be  a  virtue,  then  we  can  claim 
to  be  as  virtuous  as  anybody.  But  we  make  no  pretensions  whatever 
to  that  outrageous  and  extravagant  righteousness  which  prompts  Mr. 
Adams  not  only  to  denounce  Fisk  himself,  but  to  assail  every  man 
that  does  him  justice  and  heap  laudations  without  measure  on  all  who 
try  to  swindle  him  or  his  associates. 

Most  of  our  readers  will  altogether  fail  to  understand  the  merits  of 
the  controversy  or  the  incidents  which  attended  it  unless  they  make 
themselves  acquainted,  at  least  to  some  little  extent,  with  the  singu 
larities  of  New  York  jurisprudence,  produced  partly  by  what  is  called 
a  reform  in  the  Code  of  Procedure,  and  partly  by  a  most  anomalous 
and  extraordinary  organization  of  the  judicial  system.  A  moment's 
attention  to  this  will  explain  our  meaning,  and  show  that  the  confu 
sion,  misapprehension,  and  total  failure  of  justice  which  took  place  in 
these  cases,  while  they  could  not  possibly  have  happened  in  any  other 
country,  could  scarcely  have  been  avoided  in  New  York. 


MISCELLANEOUS.  HI 

It  was  in  1830  that  Lord  Brougham — that  many-sided  man,  who 
spoke  and  wrote  continually  on  every  conceivable  subject  in  literature, 
science,  and  art,  but  who  knew  less  and  cared  less  about  the  science  of 
his  own  profession  than  about  anything  else — of  whom  Sugden  said 
that  it  was  "  a  pity  the  honorable  gentleman  did  not  know  a  little  law, 
for  he  would  then  know  a  little  of  everything  " — extended  his  noto 
riety  by  an  elaborate  and  plausible  speech  on  law  reform.  It  was  easy 
to  point  out  defects  in  any  system,  and  that  of  England,  though  ex 
pansive  in  its  nature,  had  not  grown  with  the  growth  of  the  nation. 
Some  of  its  excrescences  needed  to  be  rubbed  off ;  some  of  its  forms 
were  effete  ;  a  part  of  its  process  was  costly  and  useless  ;  its  machinery 
was  clogged  with  the  quantity  of  business  which  the  increased  com 
merce  of  the  country  had  thrown  upon  it.  Brougham's  eloquence 
had  the  effect  to  stir  up  the  leading  minds  of  Parliament  and  call 
their  attention  to  the  necessity  of  some  changes.  But  they  went 
about  it  cautiously.  They  cheapened  the  law  to  the  suitor  by  estab 
lishing  new  tribunals,  they  swept  away  impediments  that  stood  in  the 
path  of  justice,  and  they  abolished  many  offices  which  merely  encum 
bered  the  courts.  But  with  reverent  care  they  preserved  the  exquisite 
logic  which  for  ages  has  been  crystallizing  into  the  forms  of  pleading. 
Instead  of  throwing  it  loose  and  lawless  to  the  mercy  of  ignorant  pre 
tenders,  it  was  made  more  exacting  and  precise  than  before  :  the 
declaration  must  give  perfectly  accurate  notice  of  the  demand  ;  a  plea 
must  disclose  the  very  defense  to  be  proved ;  the  general  issue  in  most 
cases  was  abolished,  and  special  pleading  was  made  more  special  than 
ever.  Nor  did  they  for  a  moment  think  of  dispensing  with  those 
rules  of  evidence  which  the  experience  of  mankind  had  shown  to  be 
necessary  to  the  successful  investigation  of  truth. 

But  Brougham's  speeches,  together  with  the  maledictions  of  Ben- 
tham,  created  a  far  profounder  sensation  in  America  than  in  England. 
Here  they  produced  among  many  influential  men  a  passionate  appetite 
for  radical  revolution.  Everything  that  was  old  or  English  began  to 
be  looked  on  with  contempt ;  whatever  had  been  held  in  reverence  by 
our  fathers,  on  this  or  on  the  other  side  of  the  water,  was  set  down  as 
worthless ;  even  the  writ  of  habeas  corpus  and  trial  by  jury  were 
strongly  suspected  of  being  obsolete  humbugs,  and  the  public  mind 
was  preparing  itself  to  see  them  trampled  under  foot  without  an  effort 
to  save  them.  Good  and  great  men,  as  well  as  the  weak  and  the 
wicked,  were  subjected  (of  course  for  opposite  reasons)  to  these 
malign  influences,  and  both  classes  were  in  equal  haste  to  bury  the  old 
system  out  of  sight. 

In  New  York,  where  this  feeling  was  strongest,  the  revolutionary 
party  did  itself  honor  by  accepting  the  leadership  of  the  ablest  and 
most  distinguished  jurists  of  the  State.  A  full  Code,  as  comprehen 
sive  as  that  of  Napoleon  and  as  minute  in  its  details  as  that  of  Living- 


112  MISCELLANEOUS. 

ston,  was  the  work  of  their  hands.  They  laid  it  at  the  feet  of  the 
Legislature,  and  that  body  adopted  the  Code  of  Procedure,  but  re 
jected  all  else  that  was  proposed.  They  put  into  operation  just 
enough  of  it  to  abolish  the  distinction  between  law  and  equity,  with 
out  preventing  the  possible  abuses  of  either  ;  to  confound  all  remedies 
by  mixing  them  together  and  making  one  form  of  action  serve  against 
every  species  of  wrong ;  and  to  banish  every  trace  of  science  from 
pleading.  What  might  have  been  the  success  of  this  empirical  raid 
on  the  common  law  if  the  whole  Code  had  been  adopted,  it  is  impos 
sible  to  say  ;  but  the  experiment  as  actually  made  is  not  merely  a  fail 
ure — it  is  a  disastrous  visitation  upon  the  people  of  the  State.  In 
stead  of  the  cheapness,  certainty,  and  promptness  which  the  reformers 
no  doubt  intended  to  promote,  the  unlucky  suitor  is  vexed  with  end 
less  delay,  impoverished  by  enormous  costs,  and  at  every  turn  is  liable 
to  be  tricked  and  deluded  to  his  ruin.  The  new  Code  encourages  igno 
rance,  rapacity,  and  fraud,  by  inviting  everybody  to  practice  it  who 
can  not  live  at  any  other  trade,  and  gives  a  large  share  in  the  adminis 
tration  of  justice  to  a  class  of  men  for  whom  the  English  language  had 
no  name  until  a  new  epithet  of  contempt  was  added  to  the  vocabulary. 
The  separate  administration  of  law  and  equity  used  to  be  a  stand 
ing  subject  of  invective  with  the  reformers.  A  court  of  law  could  not 
refuse  judgment  in  favor  of  a  plaintiff  who  claimed  a  legal  right ;  but 
if  the  defendant  had  an  answer  founded  on  a  paramount  equity,  a 
chancellor  might  enjoin  his  adversary  not  to  take  advantage  of  his 
mere  legal  superiority.  It  was  thought  extremely  absurd  that  the 
authority  of  two  tribunals  should  be  invoked  to  do  justice  in  the  same 
case  between  the  same  parties,  and  that  what  was  called  right  in  one 
court  should  be  pronounced  wrong  in  another.  We  do  not  stop  now 
to  defend,  as  we  might,  the  wisdom  of  circumscribing  the  power  of 
judges  and  assigning  different  functions  to  different  classes  of  them. 
But  under  the  Code,  the  wall  of  partition  between  law  and  equity  is 
completely  broken  down  ;  the  law  judges  are  all  chancellors,  and,  vice 
versa,  all  chancellors  are  Jaw  judges,  and  they  administer  both  equity 
and  law  in  forms  so  exactly  alike  that  the  judges  themselves  do  not 
know,  and  are  not  bound  to  know,  which  is  which.  There  is,  there 
fore,  no  possible  excuse  for  employing  more  than  one  tribunal  in  the 
same  cause.  Nevertheless,  the  frequent  and  allowed  practice  is  for 
the  defendant,  instead  of  answering  a  complaint,  to  file  a  counter- 
complaint  against  his  adversary.  An  injunction  is  the  favorite  weap 
on  in  all  contests.  Its  simplicity  commends  it  to  the  professional 
mind,  as  the  simplicity  of  the  knout  and  the  bastinado  makes  them 
dear  to  the  heart  of  the  Muscovite  and  the  Turk.  It  can  always  be 
got  for  the  asking,  if  the  request  be  accompanied  with  an  affidavit 
that  somebody  wants  it  "to  the  best  of  his  information  and  belief." 
It  is  granted  of  course,  ex  debito  justitice,  without  examination  and 


MISCELLANEOUS.  113 

without  notice  to  the  opposite  party  ;  it  is  granted  privately  ;  it  is  not 
put  on  record  ;  it  is  not  placed  in  the  hands  of  a  public  officer  to  be 
served  or  executed,  but  the  judge  gives  it  to  the  complainant  himself  or 
his  attorney,  who  keeps  it  a  secret  if  he  pleases  until  he  catches  his  vic 
tim  at  a  disadvantage,  and  then  springs  it  upon  him  from  his  pocket. 
Unfortunately,  however,  this  is  a  game  that  two  or  a  dozen  can  play 
at  as  well  as  one.  The  party  enjoined  by  one  judge  can  go  to  another 
judge  equally  facile,  and  get  an  injunction  against  his  adversary,  com 
manding  that  the  order  of  the  first  shall  be  disobeyed.  Or  a  third 
person  may  seek  a  third  judge,  who  will  readily  throw  his  force 
against  either  or  both.  There  are  thirty-three  judges  in  the  State,  of 
equal  grade  and  co-ordinate  power,  elected  in  eight  districts,  and  re 
siding  in  different  regions,  to  whose  jurisdiction  there  are  no  territo 
rial  limits  except  the  lines  of  the  State.  Each  one  of  these  claims 
the  right,  and  exercises  it,  of  enjoining  whom  he  pleases,  without 
regard  to  the  cognizance  which  may  have  been  previously  taken  of  the 
subject  or  the  parties  by  one  or  more  of  his  brethren ;  and  his  pro 
cess,  orders,  or  decrees,  are  equally  potential  in  every  part  of  the 
State.  A  man  enjoined  by  a  judge  in.  New  York  city  to  do  a  thing 
may  be  ordered  by  a  Buffalo  judge  not  to  do  it ;  and  a  Brooklyn  judge 
who  has  commanded  one  of  his  constituents  to  refrain  from  a  particu 
lar  act,  may  be  met  the  next  day  by  a  counter-order  from  Eochester 
in  which  the  same  party  is  solemnly  directed  to  refrain  from  refrain 
ing.  These  injunctions  are  not  mere  l)rutum  fulmen ;  the  judicial 
guns  on  either  side  are  loaded  to  the  muzzle  with  the  heaviest  metal 
they  can  ram  down.  Each  judge  demands  implicit  obedience  to  his 
own  order,  and  the  penalty  of  disobedience  can  not  be  escaped  by 
showing  that  the  parties  are  under  conflicting  orders  from  another 
quarter  ;  for  the  learned  magistrates  who  administer  the  Code  act  on 
the  principle  of  that  ultra-democracy  which  insists  that  one  man  is 
not  only  as  good  as  another,  but  a  great  deal  better.  It  happens  thus 
that,  in  a  case  involving  numerous  and  complicated  interests  of  great 
value,  all  persons  concerned  get  hemmed  in  with  injunctions  from 
various  parts  of  the  State,  commanding  them  by  authority,  which  they 
dare  not  question,  to  do  everything,  and  at  the  same  time  to  do  noth 
ing.  They  can  neither  move  nor  stand  still  without  incurring  a  pen 
alty  somewhat  like  that  of  outlawry  in  feudal  times.  Their  cause  may 
be  pending  in  a  score  of  courts  at  once ;  a  party  who  prosecutes  or  de 
fends  in  any  one  of  them  is  guilty  of  contempt,  and,  if  he  fails,  a 
decree  is  pronounced  against  him  by  default.  His  condition  is  like 
that  ascribed  by  Lorenzo  Dow  to  a  predestined  reprobate  under  the 
creed  of  Calvin  : 

You  shall  and  you  shaVt — you  will  and  you  won't ; 
You're  condemned  if  you  do,  and  you're  cursed  if  you  don't. 
8 


MISCELLANEOUS. 

When  all  the  parties  are  bound  hand  and  foot,  so  that  justice  or 
even  an  investigation  in  the  courts  has  become  a  thing  of  impossible 
attainment,  the  case  is  considered  about  ready  for  trial  in  the  news 
papers,  where  the  suitors,  the  counsel,  and  the  judges  are  plastered 
with  praise,  or  covered  with  odious  imputations,  according  to  the  vari 
ous  interests  and  tastes  of  those  who  engage  in  the  discussion.  We 
venture,  though  with  some  diffidence,  to  pronounce  this  rather  a  poor 
substitute  for  the  trial  by  battle  which  would  have  been  accorded  in 
the  middle  ages.  So  thought  the  parties  in  the  Susquehanna  and  Al 
bany  suits ;  for  they  actually  loosened  the  deadlock  of  the  courts  by 
physical  force.  It  is  true  that  the  champions  did  not  go  out  on  the 
open  plain,  and,  after  taking  an  oath  against  witchcraft,  beat  each 
other  with  sand-bags  to  show  whose  cause  was  holiest  in  the  sight  of 
God ;  but  they  did  try  whose  judges  had  made  the  most  righteous  in 
junctions  by  rushing  against  one  another  with  colliding  locomotives. 

It  is  due  to  the  framers  and  original  supporters  of  the  Code  to  say 
that  they  never  contemplated  the  frightful  perversions  which  it  has 
been  made  to  undergo,  nor  are  they  at  all  responsible  for  the  absurd 
arrangement  of  the  judicial  department  which  causes  these  scandalous 
conflicts  of  jurisdiction. 

We  devoutly  believe  that  a  fair  consideration  of  the  Albany  and 
Susquehanna  litigations  will  throw  the  blame  of  them  on  shoulders 
which  have  heretofore  not  borne  their  proper  share.  We  will  briefly 
present  the  most  important  of  the  facts  pertaining  to  this  cause  ce- 
Ulre,  and  leave  the  public  to  judge  whether  the  attacks  on  the  long- 
established  fame  of  Mr.  Field  and  his  partners  have  any  foundation  in 
truth.  The  same  public  may  determine  if  it  can,  "  by  what  conjura 
tion  and  most  mighty  magic"  the  Ramsey  party  have  managed  to 
invest  their  leader  with  the  reputation  of  a  persecuted  saint.  If  we 
happen  to  have  any  readers  who  feel  an  interest  in  the  most  important 
of  all  worldly  concerns — the  distribution  of  justice  among  the  people 
of  a  great  State— some  of  them  may  be  led  to  inquire  if  the  system  of 
judicial  procedure  which  produces  such  intolerable  evils  can  not  be 
amended,  or,  if  change  be  impossible,  what  amount  of  passive  fortitude 
is  required  to  bear  it  as  it  is  : 

"...  how  end  this  dire  calamity; 
What  re-enforcement  may  be  gained  from  hope; 
If  not,  what  resolution  from  despair." 

The  Albany  and  Susquehanna  Eailway  Company  was  incorporated 
in  1852,  and  began  work  in  1853,  but  the  line  was  not  opened  for 
traffic  until  January,  1869.  It  stretches  a  distance  of  one  hundred 
and  forty  miles  from  Binghamton,  where  it  connects  with  the  Erie,  to 
Albany,  whence  its  freights  may  be  carried  by  direct  routes  to  divers 
parts  of  New  England.  The  Erie  had  previously  sent  its  branches 


MISCELLANEOUS.  115 

into  the  anthracite  deposits  of  Pennsylvania,  and  needed  the  use  of 
the  Albany  and  Susquehanna  as  a  means  of  getting  the  coal  it  brought 
to  Binghamton  as  far  as  Albany  on  its  way  to  the  New  England  mar 
ket  ;  and  it  was,  of  course,  the  interest  of  the  new  road  to  take  all  the 
business  it  could  get  in  that  way.  Its  track  had  been  laid  on  the  ex 
ceptional  broad  gauge  of  the  Erie,  which  shows  that  its  projectors  had 
from  the  beginning  contemplated  that  it  would  support  and  be  sup 
ported  by  that  line.  It  would,  undoubtedly,  have  been  improper  for 
the  great  company  to  take  control  of  the  smaller  one,  or  to  appro 
priate  its  earnings ;  but  their  geographical  relations,  the  similarity 
of  their  structure,  their  duty  to  the  public,  and  the  mutual  interests 
of  their  proprietors,  all  required  a  cordial  co-operation  in  business. 
Nevertheless,  there  was  no  special  arrangement  to  that  end,  and  no 
proposition  to  make  one,  until  the  stockholders  of  the  Albany  and 
Susquehanna  solicited  the  aid  of  the  Erie  to  rid  them  of  the  dangerous- 
dishonesty  which  had  crept  into  the  management  of  their  own  internal 
affairs. 

It  was  the  great  misfortune  of  the  Albany  and  Susquehanna  cor 
poration  to  have  trusted  one  Joseph  H.  Ramsey  as  its  president  and 
financial  manager.  He  did  not  prove  himself  faithful.  The  bargains 
by  which  he  raised  money  at  usurious  rates  were  not  only  disapproved 
by  his  constituents  :  they  were  indefensible  on  the  score  of  common 
prudence.  When  his  own  interests  were  in  conflict  with  the  duties  of 
his  trust,  he  showed  a  lack  of  qualities  even  more  important  than 
sound  judgment.  He  paid  himself  on  one  occasion  $16,000  for  ser 
vices  which  he  alleged  he  had  rendered  the  company  as  its  attorney. 
He  made  the  bill  and  settled  it,  absolutely  refusing  to  let  the  finance 
committee  pass  upon  it.  He  made  a  contract  on  behalf  of  his  corpora 
tion  with  an  express  company,  in  which  he  ruinously  sacrified  the  in 
terests  of  the  party  he  professed  to  represent ;  it  turned  out  afterward 
that  he  was  a  partner  in  the  express  company.  Mr.  Adams  has  proudly 
claimed  for  him,  as  a  great  merit,  that  he  went  to  the  Legislature  "in 
behalf  of  the  enterprise."  Of  such  are  the  Albany  rings.  He  ran  for 
Congress  once,  and  while  he  was  a  candidate  he  issued  three  thousand 
free  passes  over  the  road  to  as  many  electors,  whose  favor  he  sought  to 
win  at  the  expense  of  the  company.  At  the  time  of  his  suspension 
from  office  he  owed  the  company  $20,000,  which  he  had  taken  from 
its  funds  for  his  own  purposes,  on  his  own  terms,  and  by  his  own 
leave.  Whether  he  subsequently  disgorged  this  money  does  not  ap 
pear. 

It  was  manifest  to  the  stockholders  that  these  practices  could  not 
be  continued  without  ruin  to  their  prosperity  and  infamy  to  the  char 
acter  of  their  corporation ;  and  they  determined  to  stop  them.  But, 
like  many  other  reformers,  they  committed  the  fatal  mistake  of  adopt 
ing  half-way  measures.  Instead  of  turning  Ramsey  out  neck  and 


116  MISCELLANEOUS. 

"heels,  they  re-elected  him,  but  by  a  very  decided  vote  chose  a  majority 
of  directors  strong  enough,  as  they  thought,  and  true  enough,  to  con 
trol  his  action  and  compel  him  to  be  honest.  Seeing  their  forbear 
ance,  and  probably  mistaking  it  for  timidity,  he  was  hardy  enough  to 
tell  them  to  their  faces  that  he  would  permit  no  such  oversight  of  his 
conduct  as  they  proposed ;  that  he  would  not  belong  to  a  divided  di 
rection  ;  that  at  the  next  election  either  he  or  his  opponents  must  go 
out.  The  stockholders  accepted  the  issue  thus  tendered  to  them,  and 
to  maintain  that  issue  was  the  object  of  all  their  subsequent  struggles. 
Thus  the  corporators  were  hopelessly  divided  into  two  hostile  factions. 
One  of  them,  known  through  the  legal  proceedings  as  the  Church 
party,  and  holding  a  large  majority  of  the  stock,  was  bent  on  having 
officers  whose  fidelity  they  could  trust ;  and  the  other,  led  by  Eamsey, 
wished  to  subordinate  all  the  interests  of  the  company  severely  and 
constantly  to  his  own. 

The  next  election  was  to  take  place  in  September,  1869,  and  the 
parties  began  without  delay  to  look  around  them  for  the  material  of 
the  contest.  The  authorized  capital  of  the  company  was  84,000,000, 
divided  into  40,000  shares  of  $100  each.  Of  these  40,000  shares  17,238 
were  outstanding  in  the  hands  of  bona  fide  holders,  who  had  paid  full 
price  for  them,  and  whose  right  to  vote  them  could  not  be  disputed. 
The  Church  party  were  thoroughly  satisfied  that  they  and  others  op 
posed  to  the  existing  management  held  a  clear  majority  of  the  legal 
and  honest  shares.  On  the  other  hand,  Ramsey  was  not  without  ex 
pedients  by  which  he  hoped  to  win.  About  2,400  shares  had  been 
forfeited  by  the  failure  of  the  original  subscribers  to  pay  for  them. 
These  were  reissued  by  Ramsey  to  one  David  Groesbeck  for  twenty-five 
cents  on  the  dollar,  in  direct  violation  of  a  general  law  which  forbade 
any  railroad  company  to  sell  its  stock  for  less  than  par.  Groesbeck 
was  not  only  unscrupulous  enough  to  become  a  party  to  this  fraudu 
lent  over-issue,  by  which  the  honest  stock  would  be  watered,  but  he 
was  entirely  willing  to  vote  it  as  Ramsey,  his  partner  in  the  fraud, 
might  desire.  When  the  latter  gentleman  discovered  that  he  could 
not  balance  the  real  stockholders  in  that  way,  he  resorted  to  another 
trick,  which  was,  if  possible,  baser  as  well  as  bolder.  He  got  together 
certain  of  his  confederates  secretly  at  his  own  house,  and  distributed 
among  them  certificates  for  9,500  shares  of  stock,  for  which  they  had 
not  paid,  and  did  not  mean  to  pay,  a  single  cent.  It  was  necessary 
that  something  should  appear  to  have  been  paid,  but  the  recipients  of 
the  shares  could  not  or  would  not  furnish  any  money  for  that  purpose. 
Ramsey  himself  had  no  cash  of  his  own  to  advance,  but  he  went  to  the 
company's  safe,  of  which  he  had  the  key,  took  out  bonds,  the  property 
of  the  company,  amounting  to  $150,000,  pawned  them  to  the  same 
Groesbeck  who  had  taken  his  former  over-issue,  and  thus  raised  enough 
to  pay  ten  per  cent  on  the  9,500  shares.  It  is  not  easy  to  conceive  a 


MISCELLANEOUS.  117 

transaction  more  thoroughly  iniquitous  tha"n  this.  It  was  a  double 
fraud  :  it  was  intended  to  stuff  the  ballot:box  with  bogus  votes,  and 
make  the  stockholders  pay  the  expenses  of  the  cheat  upon  themselves 
out  of  their  own  funds.  That  it  might  want  no  aggravating  circum 
stance,  it  was  planned  and  executed  by  a  trustee  whose  solemn  duty  it 
was  in  law  and  conscience  to  protect  and  defend  the  rights  of  the  in 
jured  parties  against  the  knavery  of  others — not  make  them  the  vic 
tims  of  his  own. 

In  the  mean  time  the  Church  party,  not  knowing  of  these  things, 
and  unable  to  foresee  what  Kamsey  might  do,  thought  it  prudent  to 
re-enforce  themselves  by  getting  as  many  of  the  lona  fide  shares  into 
their  hands  as  possible,  and  thus  make  their  majority  large  enough  to 
balance  any  fraud  which  he  could  carry  out.  A  considerable  amount 
of  the  stock  was  held  by  towns  along  the  line  of  the  road,  and  it  could 
not  be  got  for  less  than  par.  In  these  circumstances  they  applied  to 
the  Erie  managers  for  assistance  in  money  to  buy  the  shares  which 
might  be  needed.  The  request  was  acceded  to.  There  was  no  lawless 
intrusion  of  Erie,  or  of  Fisk  and  Gould,  into  the  affairs  of  the  Albany 
and  Susquehanna ;  no  volunteering  in  the  dispute  between  Ramsey 
and  his  constituents  ;  no  compact  for  any  undue  share  in  the  control 
of  the  road.  The  men  of  the  Church  party  desired  to  save  their  cor 
poration  alive  out  of  the  hands  of  Ramsey,  and  the  Erie  managers 
knew  that  by  assisting  them  they  would  promote  the  true  interests  of 
every  honest  stockholder  in  both  companies.  Where  motives  so  fair 
and  wise  and  obvious  exist  for  one  party  to  make,  and  the  other  to 
accept,  a  business  proposition,  it  is  not  necessary,  but  it  is  shameful, 
to  allege  corruptions  which  there  is  nothing  to  prove  or  even  to  sug 
gest. 

When  the  assistance  of  the  Erie  men  was  assured  to  them,  David 
Wilber  and  others  of  the  Church  party  proceeded  by  the  authority  of 
Mr.  Gould,  and  with  money  furnished  by  him,  to  buy  Albany  and 
Susquehanna  stock  wherever  they  could  get  it ;  and  they  secured  a 
considerable  number  of  shares,  mainly  from  the  towns,  paying  full 
price  for  them.  By  the  3d  of  August  the  Church  party,  and  the 
friends  of  the  company  who  acted  with  them,  had  11,400  shares  of  the 
undisputed  stock,  leaving  only  6,139  in  other  hands.  Assuming  that 
Ramsey  might  get  all  these,  he  must  be  beaten  nearly  two  to  one. 
Even  if  his  friend  and  fellow-sinner  Groesbeck  should  vote  the  2,400 
fraudulent  shares  held  by  him,  the  Church  men  would  still  have  a 
majority  of  2,864.  Judge  Barnard,  at  the  instance  of  Mr.  Bush,  a 
member  of  the  Church  party,  put  Groesbeck  Jiors  de  combat  by  an  in 
junction  which  commanded  him  to  deliver  up  his  stock  into  the  hands 
of  Mr.  W.  J.  A.  Fuller,  who  was  appointed  to  hold  it  as  receiver,  so 
that  Groesbeck  could  not  vote  it  unless  he  would  come  forward  and 
show  that  he  had  a  title,  which  of  course  he  did  not  attempt  to  do, 


118  MISCELLANEOUS. 

knowing  very  well  that  he  could  not.  The  9,500  false  shares  men 
tioned  above  had  not  yet  been  fabricated,  nor  had  the  corporation  safe 
been  robbed  to  pay  for  them  at  the  time  we  now  speak  of. 

Ramsey  did  not  confine  his  operations  to  mere  aggressive  frauds 
upon  his  constituents ;  he  was  a  master  of  defense  as  well  as  offense. 
" Fitz- James's  blade  was  sword  and  shield."  When  he  saw  the  heavy 
purchases  his  opponents  were  making,  he  instantly  directed  the  treas 
urer  to  make  no  more  transfers  upon  the  books  of  the  company  to  the 
Church  party.  Accordingly  Phelps,  the  treasurer,  refused  to  make 
official  note  of  the  transfer  from  the  town  of  Oneonta,  although  there 
was  no  appearance  of  illegality  about  the  sale,  and  the  commissioners 
were  personally  present  to  affirm  its  perfect  regularity. 

To  strengthen  himself  in  his  false  position,  he  got  an  Albany  judge 
to  make  an  injunction  forbidding  the  transfer.  This  was  and  could 
be  nothing  but  a  mere  sham.  It  was  in  eifect,  though  not  in  form,  a 
suit  by  himself  against  himself,  to  restrain  himself  from  performing  a 
duty  which  he  had  predetermined  not  to  do  anyhow.  The  Church 
party  not  only  got  his  Albany  injunction  dissolved,  but  fulminated 
another  upon  him  from  New  York,  which  commanded  him  to  refrain 
from  his  refusal  to  make  the  transfer. 

But  Ramsey  defeated  the  object  of  this  last  injunction  by  an  out 
rage  which  has  no  parallel  even  in  the  history  of  his  own  iniquities. 
He  furtively  took  the  books  of  the  company,  carried  them  away,  and 
hid  them  part  of  the  time  in  a  tomb  in  the  Albany  graveyard,  and 
part  of  the  time  in  other  lonely  places  where  they  were  beyond  the 
reach  of  judicial  process,  out  of  the  stockholders'  sight  or  knowledge, 
and  accessible  only  to  himself  and  a  few  of  his  trusted  accomplices. 
By  this  conveyance,  as  Pistol  would  call  it,  of  the  record,  he  not  only 
prevented  all  transfers  to  bona  fide  purchasers,  but  put  it  into  his 
power  to  fabricate,  without  detection,  as  much  bogus  stock  as  he 
might  need  for  his  own  purposes.  In  point  of  fact,  it  was  on  the  same 
night  signalized  by  the  disappearance  of  the  books  that  he  manu 
factured  the  9,500  shares  which  he  pretended  to  pay  for  with  the  pro 
ceeds  of  the  company's  bonds. 

It  was  very  plain  by  this  time  that  the  stockholders  needed  the 
help  of  judicial  authority  to  save  their  rights  from  the  most  atrocious 
violation  ;  and  it  will  be  seen  hereafter  that  judicial  authority,  as  ad 
ministered  in  New  York,  was  very  far  from  being  effective  to  that  end. 
However,  the  war  of  injunctions  had  already  commenced.  The  next 
gun  was  a  heavy  one.  It  was  an  order  obtained  ex  parte  from  Judge 
Barnard  in  New  York  city,  suspending  Ramsey  from  office,  and  re 
straining  the  issue  of  any  more  stock  unless  under  a  resolution  of  the 
directors,  after  public  notice,  and  upon  payment  of  its  par  value. 
This  order  was  made  at  the  instance  of  David  Wilber,  a  stockholder,  a 
director,  and  an  active  supporter  of  the  Church  party.  The  complaint 


MISCELLANEOUS.  119 

charged  Eamsey  (and  no  doubt  charged  him  truly)  with  divers  misde 
meanors,  which  showed  that  he  was  wholly  unfit  for  his  trust,  or  in 
deed  for  any  other.  The  proceeding  was  justifiable  in  this  particular 
case,  not  only  because  the  law  allowed  it  and  the  court  awarded  it,  but 
because  the  special  end  it  aimed  at  was  right  and  proper. 

But  it  is  not  easy  to  defend  on  general  principles  the  wisdom  of 
the  law  which  permits  even  a  guilty  man  to  be  scourged  before  he  is 
condemned.  It  is  true  that  Eamsey  was  offered  a  chance  of  being 
heard  in  his  own  defense  after  he  was  deposed ;  but  this  reverses  the 
inflexible  rule  of  the  common  law,  which  in  all  cases  and  under  all 
circumstances  requires  the  hearing  to  precede,  the  punishment.  In 
deed,  the  New  York  Code  has  in  this  respect  but  one  example  to  keep 
it  in  countenance,  and  that  is  found  in  the  hard  ruling  (according  to 
Virgil's  report)  of  the  judge  who  presided  in  what  may  literally  be 
called  "the  court  below"  : 

Gnosius  Me  Khadamanthus  habet  durissima  regna, 
Castigatque,  auditque  dolos,  subigitque  fateri. 

Sir  Edward  Coke,  quoting  these  lines,  says  :  "  The  philosophic 
poet  doth  notably  describe  the  damnable  and  damned  proceedings  of 
the  Judge  of  Hell.  First  he  punisheth,  and  then  he  heareth,  and 
lastly  he  compelleth  to  confess.  But  good  judges  and  justices  abhor 
these  courses." 

Ramsey  and  his  advisers  not  only  learned  the  lesson  their  oppo 
nents  taught  them,  but  they  bettered  the  instructions.  They  were 
quick  enough  to  see  that,  under  a  law  which  struck  without  hearing, 
a  false  accusation  was  just  as  good  as  a  true  one.  Ramsey,  therefore, 
did  not  close  his  eyes  to  sleep  before  he  trumped  up  a  series  of  charges 
against  Mr.  Herrick,  the  vice-president,  and  four  of  the  directors, 
that  they  were  in  a  conspiracy  with  the  managers  of  Erie  for  a  surren 
der  of  their  line  to  that  corporation,  which  was  corruptly  managed  by 
Gould,  Fisk,  and  others,  for  their  private  ends.  On  this  complaint  a 
Judge  of  the  Supreme  Court  at  Albany  promptly,  and  without  the 
least  hesitation  or  demur,  granted  an  injunction  to  restrain  the  vice- 
president  and  directors  from  exercising  their  functions.  This  swept 
the  board  clean,  and  left  the  Albany  and  Susquehanna  Railway  Com 
pany  with  millions  of  dollars'  worth  of  property  in  a  most  critical 
situation,  and  without  a  soul  who  could  legally  take  charge  of  it. 

The  judges  of  New  York  were  as  rapid  in  their  movements  as  the 
old  courts  of  Pie  Poudre.  Ramsey  got  his  injunction  to  stop  transfers 
on  the  2d  of  August.  On  the  3d  he  was  enjoined  to  make  the  trans 
fers.  On  the  4th  Wilber's  injunction  deposed  him  ;  he  was  notified  of 
it  on  the  morning  of  the  5th,  and  on  that  same  day  he  made  his 
counter-complaint ;  in  the  course  of  the  night  he  carried  off  the  books 


120  MISCELLANEOUS. 

and  fabricated  the  false  stock ;  on  the  next  morning  he  served  his 
order  upon  the  vice-president,  and  the  corporation  was  broken  to  frag 
ments. 

Thus  far  Eamsey  was  the  winner.  With  the  records  of  the  corpora 
tion  in  his  exclusive  possession,  a  treasurer  at  his  elbow  to  whom  his 
word  was  law,  and  numerous  active  confederates  to  do  his  bidding,  he 
was  master  of  the  situation.  To  be  sure,  his  enemies  had  deposed  him, 
but  he  had  also  deposed  them,  and  put  their  property  in  peril  of  ex 
treme  and  ruinous  loss — "which,  if  not  victory,  was  at  least  revenge." 

Things  had  come  to  a  crisis  in  the  affairs  of  the  company  where  the 
stockholders  could  do  but  one  thing,  and  that  was  to  have  receivers  ap 
pointed  who  would  keep  the  road  running  until  its  regular  management 
could  somehow  be  restored.  The  Church  party,  who  owned  by  far  the 
larger  part  of  the  stock,  and  who  had  paid  not  only  fair  but  high  prices 
for  it,  could  not  look  upon  their  condition  with  calm  indifference. 
They  were  constrained  to  act  promptly.  Accordingly,  on  the  evening 
of  the  6th  of  August,  they  applied  to  Judge  Barnard,  and  got  him  to 
appoint  two  receivers,  Charles  Courter  and  James  Fisk,  Jr.  The  ap 
pointment  of  Mr.  Fisk  provoked  a  torrent  of  vituperation.  It  has  been 
considered  a  sufficient  reason  for  charging  the  judge,  the  counsel,  and 
all  others  concerned  in  it,  with  gross  corruption.  Without  stopping 
to  inquire  whether  Mr.  Fisk  was  or  was  not  as  proper  a  person  as  any 
other  for  such  a  trust,  we  note  two  facts  which  should  stop  this  out 
burst  of  calumnious  accusation.  In  the  first  place,  the  authority  given 
the  receivers  was  joint,  and  Fisk  could  do  no  act,  good,  bad,  or  indif 
ferent,  without  the  approbation  of  his  colleague,  who  was  and  is  a 
gentleman  not  only  of  very  large  estate,  but  of  most  unblemished 
character  ;  and,  secondly,  the  appointment  was  made  with  the  consent, 
expressed  in  writing,  of  seven  directors  representing  an  undoubted 
majority  of  the  stockholders.  The  order  was  privately  signed  by  the 
judge,  after  the  manner  of  New  York  judges  ;  but  if  this  was  law  and 
custom  in  all  cases,  as  it  undoubtedly  was,  why  should  there  be  an  out 
cry  about  the  observance  of  it  on  this  occasion  ?  It  becomes  especially 
absurd  when  we  find  that  another  judge,  acting  in  Ramsey's  interest 
and  at  his  request,  was  doing  the  very  same  thing  at  Albany  on  the 
same  night  and  at  about  the  same  hour  ! 

Yes,  Ramsey  had  countermined  the  Church  party  again.  Before 
Messrs.  Courter  and  Fisk  could  reach  Albany  with  Judge  Barnard's 
warrant  to  take  possession  of  the  trust,  Judge  Peckham  had  privately, 
in  the  office  of  his  son,  invested  a  Mr.  Pruyn  with  the  same  powers, 
and  Mr.  Pruyn  had  possession  of  the  company's  office  and  the  road  at 
that  end  of  it.  Messrs.  Courter  and  Fisk,  by  their  agents,  got  hold  of 
the  Binghamton  end,  and  that  was  all  they  could  do.  This  brought 
the  parties  to  close  quarters.  The  conflict  between  opposing  receivers, 
holding  their  authority  from  courts  of  equal  jurisdiction,  and  acting 


MISCELLANEOUS.  121 

under  irreconcilable  orders  which  each  party  claimed  to  be  of  superior 
obligation,  presented  in  a  practical  shape  the  ancient  problem  of  an 
immovable  body  encountered  by  an  irresistible  force.  Judge  Peck- 
ham's  receiver  determined  to  hold  fast,  and  the  magistrate  who  made 
him  did  not  suffer  him  to  languish  for  lack  of  helpful  process  and  re- 
enforcing  decrees.  Judge  Barnard,  not  to  be  behind  his  brother  Peck- 
ham  in  pluck  and  energy,  provided  Ms  receivers  with  writs  of  assist 
ance  and  all  the  other  weapons  they  asked  for  out  of  his  judicial 
arsenal.  Everybody  was  in  contempt,  and  everybody  was  in  default. 
The  sheriff,  whose  duty  it  was  to  execute  the  conflicting  orders,  was 
utterly  bewildered.  He  was  required  to  call  out  the  posse  comitahis 
to  support  each  party  against  the  other.  He  could  not  perform  the 
functions  of  his  office  unless  he  would  "  divide  himself  and  go  to  buf 
fets  with  the  pieces."  A  great  battle  was  impending,  and  as  the  sheriff 
with  his  power  of  the  county  was  to  be  on  both  sides,  the  result  could 
not  possibly  be  foretold.  Hostile  bodies  of  workmen  were  drawn 
out,  armed  with  pistols  and  bludgeons,  and  locomotives  got  up  steam 
and  ran  into  one  another.  The  scene  would  be  an  odd  one  in  any 
civilized  country  outside  of  the  State  where  it  occurred  ;  for  all  parties 
were  fighting  under  the  ensign  of  public  authority.  It  was  judicial 
power  subverting  order  and  breaking  the  peace  ;  it  was  law  on  a  ramp 
age  ;  it  was  justice  bedeviled  ;  in  one  word,  it  was  the  New  York  Code 
in  full  operation. 

The  Governor,  it  seems,  had  been  watching  the  current  of  this 
heady  fight ;  he  thought  it  might  be  his  duty  to  interpose  the  militia 
between  the  combatants,  and  conquer  a  peace  by  making  a  war  upon 
both  of  them.  The  opposing  receivers,  to  "  stop  the  effusion  of 
blood,"  were  persuaded  to  unite  in  a  petition  to  the  Governor  to  take 
possession  of  the  road  and  operate  it  by  a  superintendent  of  his  own 
choosing.  The  Governor  thereupon  appointed  Colonel  Banks,  stipu 
lating  that  his  custody  should  end  as  soon  as  the  rights  of  the  contest 
ing  parties  could  be  ascertained  and  settled.  This  peaceable  adjust 
ment  was  effected  by  the  exertions  of  Mr.  D.  Dudley  Field,  who,  though 
his  partners  had  previously  been  concerned  for  the  Church  party,  now 
first  appeared  as  an  active  participant  in  the  controversy.  His  wisdom, 
good  temper,  and  sound  sense  discerned  what  was  not  seen  by  others — 
the  incapacity  of  the  judicial  department  to  manage  such  a  business, 
and  the  necessity  of  putting  it  under  executive  arbitration. 

The  property  of  the  company  being  now  safe  from  destruction,  the 
stockholders  had  nothing  to  do  but  watch  and  pray  that  Ramsey  might 
not  by  any  stratagem  defeat  their  right  to  choose  an  honest  board  of 
directors.  The  election-day  came  round  in  the  fullness  of  time  ;  the 
majority  proceeded  to  business  and  cast  their  votes  ;  but  Ramsey  pro 
nounced  their  organization  illegal,  retired  with  his  confederates  to  an 
adjoining  room,  opened  a  pool,  and  declared  himself  and  others  in  his 


122  MISCELLANEOUS. 

interest  duly  elected.  He  did  not  vote  the  3,000  shares  sold  to  Groes- 
beck,  nor  the  9,500  fabricated  on  the  night  of  the  5th  of  August ;  but 
he  and  his  friends  held  some  undisputed  shares  which  thay  did  vote  at 
their  own  poll,  and  by  ignoring  the  majority  he  was  able  to  count 
himself  in  without  difficulty.  Both  boards  claimed  to  be  duly  elected, 
and  they  organized  by  choosing  Messrs.  Church  and  Ramsey  their  re 
spective  presidents.  Both  demanded  the  surrender  of  the  corporate 
franchises  into  their  lands,  but  the  Governor  did  not  think  himself 
authorized  to  decide  between  them. 

Two  or  three  circumstances  connected  with  the  election,  though 
unimportant  in  themselves,  require  to  be  noticed  here,  because  they 
have  been  much  commented  on  elsewhere. 

The  fraudulent  asportation  of  the  records  was  accomplished  on  the 
5th  of  August.  The  election  was  on  the  7th  of  September.  On  the 
night  of  the  6th,  Phelps  and  a  son  of  Eamsey  secretly  carried  the  books 
to  the  rear  of  the  building  and  hoisted  them  up  to  the  window  of  the 
treasurer's  room  in  a  basket,  with  a  rope  tied  to  its  handle.  Nobody 
but  Ramsey  and  his  little  band  of  confederates  knew  of  this  midnight 
restitution  of  the  books  until  they  were  produced  at  the  stockholders' 
meeting  next  day.  In  the  mean  time  the  Church  party,  seeing  the 
election  approach  and  feeling  the  necessity  of  having  the  ledgers  and 
stock-lists  for  inspection,  and  having  failed  in  various  efforts  to  get 
even  a  sight  of  them,  resolved  upon  taking  a  legal  remedy.  They 
brought  suit  in  the  Supreme  Court  for  the  city  of  New  York  against 
Ramsey,  Phelps,  Pruyn,  and  Smith,  charging  them  with  carrying  away 
the  books  and  concealing  them  from  the  stockholders.  By  the  Code 
the  defendants  in  such  a  case  are  liable  to  personal  arrest,  and  bail 
was  accordingly  demanded  in  $25,000.  The  process  was  issued  on  the 
6th  of  September,  and  the  parties  were  arrested  (and  bail  taken  im 
mediately)  on  the  morning  of  the  7th  (the  election-day),  the  sheriff 
having  chosen  his  own  time  to  execute  the  process.  We  have  entirely 
failed  to  comprehend  what  the  meaning  of  the  men  can  be  who  vilify 
Messrs.  Field  and  Shearman  and  their  clients  for  bringing  this  suit. 
Of  all  the  measures  taken  by  either  of  the  parties  against  the  other, 
throughout  the  contest,  this  seems  to  us  the  most  unquestionably  just 
and  proper.  It  is  mere  nonsense  to  call  it  harsh  or  oppressive.  It 
was  meant  to  redress  a  most  atrocious  wrong,  for  which  the  perpetra 
tors,  by  the  law  of  any  other  Christian  country,  would  have  been  con 
demned  as  criminals  to  heavy  fines  and  long  imprisonment,  without 
bail  or  mainprise.  Even  the  legislation  of  New  York  does  not  over 
look  the  necessity  of  punishing  an  outrage  like  this,  just  as  it  might 
have  been  punished  in  a  civil  action  before  reform  was  thought  of.  It 
is  some  honor  to  the  Code  that,  for  once,  it  spoke  out  in  the  well-meas 
ured  and  majestic  tones  of,the  common  law. 

The  presence  of  what  has  been  called  "  a  congregation  of  roughs  " 


MISCELLANEOUS.  123 

in  the  room  was  subsequently  talked  of  very  freely.  It  is  doubtless 
true  that  on  both  sides  of  the  apartment  there  crowded  a  considerable 
number  of  men  not  clothed  in  purple  and  fine  linen,  nor  having  much 
the  appearance  of  heavy  capitalists.  It  happened  thus  :  The  in 
spectors  under  whose  auspices  Ramsey  designed  to  hold  the  election 
were  disqualified  for  their  office  by  reason  of  not  being  stockholders. 
To  restrain  them  from  acting,  the  Church  party,  of  course,  betook 
themselves  to  the  everlasting  injunction,  and  on  the  morning  of  the 
election  got  out  one  of  those  convenient  engines  to  neutralize  the  ille 
gal  authority  which  Ramsey  wished  to  bestow  and  probably  to  abuse. 
This  would  leave  the  inspectors  to  be  chosen  viva  voce,  and  the  im- 
pressiveness  of  assent  or  dissent  might  depend  on  the  number  of 
throats  and  strength  of  lungs  employed  in  expressing  it.  Probably 
both  parties  anticipated  this  or  something  like  it.  It  is  certain  that 
both  improvised  a  force  of  courageous  and  muscular  gentlemen,  and, 
by  putting  a  proxy  in  the  hands  of  each  one,  they  gave  them  all  a 
technical  right  to  be  present  and  to  swell  the  volume  of  the  ayes  and 
noes  with  their  "most  sweet  voices."  But  there  was  no  actual  disor 
der,  no  intimidation,  no  violence  or  threat  of  violence. 

Another  thing  :  Groesbeck  had  been  enjoined,  and  his  2,400  fraud 
ulent  shares  had  been  put  into  the  hands  of  a  receiver  to  be  held,  so 
that  Groesbeck  could  not  vote  them.  The  Ramsey  men,  on  the  morn 
ing  of  the  election,  undertook  to  trump  this  injunction  by  getting 
from  Judge  Clute,  of  the  Albany  County  Court,  another  injunction 
which  forbade  the  inspectors  to  receive  any  votes  of  the  Church  party 
unless  the  holders  of  the  fraudulent  stock  should  first  vote  on  that. 
Fuller,  the  receiver,  happened  to  be  present.  No  doubt  he  was  puz 
zled.  He  held  the  stock,  and,  by  legal  intendment,  Judge  Clute's  order 
applied  to  him  if  it  applied  to  anybody.  He  could  not  give  it  back  to 
Groesbeck  without  defeating  the  purpose  for  which  he  held  it  and  ex 
posing  himself  to  the  danger  of  being  laid  by  the  heels.  If  he  refused 
to  vote  it,  or  let  it  be  voted,  a  large  majority  of  bonafde  stockholders, 
with  rights  to  vote  otherwise  undisputed,  would  be  totally  disfran 
chised.  He  took  the  advice  of  counsel  and  untied  the  knot  by  liter 
ally  obeying  the  Clute  injunction  and  voting  himself.  Ramsey  and  his 
men  were  fairly  infuriated  by  the  failure  of  their  shallow  and  impu 
dent  trick.  He  and  his  counsel  and  his  judge  had  made  the  blunder 
of  supposing  that  Groesbeck  was  in  law  the  holder,  and  they  got  an 
injunction  which  they  fancied  would  reinstate  his  fraudulent  posses 
sion  or  else  defeat  the  clear  right  of  all  their  opponents.  But  they 
got  one  which,  in  fact  and  in  law,  defeated  themselves.  Mr.  Ramsey 
is  not  the  first  engineer  that  was  hoist  by  his  own  petard. 

The  Governor  naturally  desired  to  get  rid  of  the  perplexing  and 
anomalous  trust  imposed  upon  him  by  the  agreement  of  the  parties. 
Perceiving  that  the  election  was  an  abortion,  and  seeing  that  the  judi- 


124:  MISCELLANEOUS. 

ciary  had  completely  failed  to  settle  anything  in  any  of  the  numerous 
suits  pending  between  the  parties,  he  directed  the  Attorney-General 
to  commence  another  in  the  name  of  the  people  against  loth  parties 
together.  This  was  not  a  quo  warranto,  nor  a  mandamus,  nor  a  Mil 
in  equity,  nor  an  action  in  case  or  trespass ;  these  terms  belong  to 
"the  jargon  of  the  common  law,"  and  the  Code  does  not  condescend 
even  to  pronounce  them.  It  was  a  proceeding  against  the  corporation 
itself  which  the  Governor  had  under  his  care,  and  against  forty-nine 
individuals,  of  two  fierce  parties,  contending  against  one  another  for 
its  management.  The  complaint  does  not  charge  them  with  any  of 
fense  against  the  plaintiff,  but  with  mutual  injuries  committed  by  one 
set  of  the  defendants  against  the  others ;  and  these  wrongs  consisted 
mainly  in  bringing  suits  for  what  they  respectively  averred  to  be  their 
rights,  a  course  of  conduct  which  the  Governor  (truly  enough,  per 
haps)  thought  would  result  in  no  good  to  anybody. 

Of  course  the  defendants  could  not  make  up  an  issue  either  of  law 
or  fact  between  themselves,  no  matter  how  they  might  sever  in  their 
answers  to  the  plaintiff.  In  the  dark  days  of  Kent  and  Livingston 
and  Spencer,  it  was  thought  morally  impossible  to  introduce  evidence 
until  there  was  an  issue  to  which  it  might  have  some  kind  of  applica 
tion.  But  here  the  defendants  were  called  in  and  permitted  to  fight 
one  another  to  their  hearts'  content  without  pleadings  or  proofs,  and 
the  judge  was  wholly  emancipated  from  that  barbarous  bondage  which 
in  past  times  would  have  compelled  him  to  pronounce  his  decree  secun- 
dum  allegata  et  probata.  The  proceeding  seemed  sufficiently  free  from 
"technicalities."  It  was  apparently  not  fashioned,  like  the  injunc 
tion,  on  the  principle  of  the  bastinado,  but  rather  modeled  after  that 
other  form  of  Turkish  justice  in  which  the  Sultan,  when  he  finds  a 
cause  too  difficult  to  be  otherwise  dealt  with,  sews  up  the  stubborn 
disputants  in  the  same  sack  and  casts  them  into  the  Bosphorus  to  go 
down  the  tide  together — which  they  generally  do  with  a  most  edifying 
disregard  for  the  rules  of  navigation. 

This  curious  cause  came  on  for  hearing  (which,  in  the  nomencla 
ture  of  the  Code,  is  called  a  trial)  at  Rochester  before  Judge  E.  Darwin 
Smith,  without  a  jury.  It  was  argued  by  Mr.  D.  Dudley  Field  for 
one  portion  of  the  defendants  and  by  Mr.  Henry  Smith  for  the  other, 
the  plaintiff  apparently  taking  no  part  whatever  ;  and  it  was  decided 
in  December,  1869.  Probably  nothing  more  severe  has  been  said,  or 
could  be  conceived,  of  Mr.  Justice  Smith's  judgment  than  the  lauda 
tory  words  bestowed  upon  it  by  Mr.  Adams.  We  quote  them  : 

"There  are  cases  where  a  judge  upon  the  bench  is  called  upon  to 
vindicate  in  no  doubtful  way  the  purity  as  well  as  the  majesty  of  the 
law ;  cases  in  which  the  parties  before  the  court  should  be  made  to 
feel  that  they  are  not  equal,  that  fraud  is  fraud  even  in  a  court  of  law 
— that  caviling  and  technicalities  and  special  pleading  can  not  blind 


MISCELLANEOUS.  125 

the  clear  eye  of  equity.     It  is  possible  that  even  a  judicial  tone  may 
be  overdone  or  be  out  of  place.     There  are  occasions  when  the  scales 
of  justice  become  almost  an  incumbrance,  and  both  hands  clutch  at 
the  sword  alone.     Whether  the  magistrate  upon  whom  the  decision  of 
this  cause  devolved  was  right  in  holding  this  to  be  such  an  occasion  is 
not  now  to  be  discussed  ;  it  is  enough  to  say  that  his  decision  sustained 
at  every  point  the  Ramsey  board,  and  crushed  in  succession  all  the 
schemes  of  the  Erie  ring.     The  opinion  was  most  noticeable  in  that  it 
approached  the  inquiry  in  a  large  spirit.     Its  conclusion  was  not  made 
to  turn  on  the  question  of  a  second  of  time,  or  a  rigid  adherence  to  the 
letter  of  the  law,  or  any  other  technicality  of  the  pettifogger ;  it  swept 
all  these  aside,  and  spoke  firmly  and  clearly  to  the  question  of  fraud 
and  fraudulent  conspiracy.     All  the  elaborate  comparisons  of  watches, 
and  noting  of  fractional  parts  of  a  minute,  which  marked  the  organiza 
tion  of  the  Erie  meeting,  were  treated  with  contempt,  but  the  meeting 
itself  was  pronounced  to  be  organized  in  pursuance  of  a  previous  con 
spiracy,  and  the  election  held  by  it  was  'irregular,  fraudulent,  and 
void.'     The  scandals  of  the  law — the  strange  processes,  injunctions, 
orders,  and  conflicts  of  jurisdiction — were  disposed  of  with  the  same 
grasp,  whenever  they  came  in  the  path  of  the  decision.     The  appoint 
ment  of  Fuller  as  receiver  was  declared  to  have  been  made  in  a  '  suit 
instituted  for  a  fraudulent  purpose,'  and  it  was  pronounced  in  such 
'  clear  conflict  with  the  law  and  settled  practice  of  the  court '  as  to  be 
explicable  only  on  a  supposition  that  the  order  was  '  gran  ted  incau 
tiously,  and  upon  some  mistaken  oral  representation  or  statement  of 
the  facts  of  the  case. '     The  order  removing  the  regular  inspectors  of 
election  was  'improvidently  granted'  and  was  *  entirely  void';  and 
the  keeping  it  back  by  counsel,  and  serving  it  only  at  the  moment  of 
the  election,  was  'an  obvious  and  designed  surprise  on  the  great  body 
of  stockholders.'     The  suit  under  which  the  Barnard  order  of  arrest 
was  issued  against  Ramsey  and  Phelps  was  instituted  without  right ; 
the  order  of  arrest  was  unauthorized ;  the  order  to  hold  to  bail  was 
'most  extraordinary  and  exorbitant,'  and  procured  'in  aid  of  fraudu 
lent  purposes.'     The  injunction  forbidding  Ramsey  to  act  as  president 
of  the  company  was  'entirely  void.'     The  3,000  shares  of  forfeited 
stock  reissued  to  Mr.  Groesbeck  were  pronounced  'valid  stock,'  and 
numerous  precedents  were  cited  in  which  the  principle  had  been  sus 
tained.     Even  the  injudicious  subscription  for  the  9,500  new  shares  of 
stock  by  Ramsey  and  his  friends,  on  which  they  had  not  attempted  to 
vote  at  the  election,  was  declared  in  point  of  law  regular,  valid,  and 
binding.     Upon  the  facts  of  the  case  the  decision  was  equally  out 
spoken  ;  it  was  fraud  and  conspiracy  everywhere.     '  The  importation 
and  crowding  into  a  small  room '  of  a  large  number  of  '  rude,  rough, 
and  dangerous  persons,'  and  furnishing  them  with  proxies  that  they 
might  participate  in  the  proceedings  of  the  meeting,  '  was  a  gross  per 
version  and  abuse  of  the  right  to  vote  by  proxy,  and  a  clear  infringe 
ment  of  the  rights  of  stockholders,  tending,  if  such  proceedings  are 
countenanced  by  the   courts,  to  convert  corporation  meetings  into 
places  of  disorder,  lawlessness,  and  riot.'    Finally,  costs  were  decreed 
tq  the  Ramsey  Board  of  Directors,  and  a  reference  was  made  to  Sam 
uel  L.  Selden,  late  a  Judge  of  the  Court  of  Appeals,  to  ascertain  and 
report  a  proper  extra  allowance  in  the  case,  and  to  which  of  the  de 
fendants  it  was  to  be  paid." 


126  MISCELLANEOUS. 

It  is  not  likely  that  Judge  Smith  will  complain  of  this  notice  of  his 
judicial  merits,  from  the  pen  of  a  rapturous  admirer.  And  yet,  when 
we  consider  their  import,  how  damning  are  these  words  of  praise  ! 
"There  are  occasions,"  says  Mr.  Adams,  "when  the  scales  of  justice 
become  almost  an  incumbrance,  and  both  hands  clutch  the  sword 
alone."  So  there  are  indeed.  Jeffreys  thought  so  when  into  the  west 
of  England  he  carried  terror  and  death  among  the  unhappy  peasantry 
who  had  followed  Monmouth,  and  came  back  to  his  master  red  with 
the  gore  of  the  Bloody  Assizes.  Ananias  the  high-priest  approached 
the  inquiry  in  a  large  spirit  of  disregard  for  what  Mr.  Adams  calls 
technicalities  when  he  commanded  them  that  stood  by  Paul  to  smite 
him  on  the  mouth ;  but  we  must  not  forget  the  indignant  rebuke  ad 
ministered  by  the  great  apostle  of  the  Gentiles  :  "God  shall  smite 
thee,  thou  whited  wall ;  for  sittest  thou  to  judge  me  according  to  the 
law,  and  commandest  me  to  be  smitten  contrary  to  the  law  ?"  When 
Saunders  was  asked  to  pronounce  an  impartial  judgment  in  the  quo 
warranto  against  the  corporation  of  London,  he  thought  a  judicial 
tone  might  be  overdone  or  out  of  place.  A  military  commission,  or 
ganized  to  please  the  powerful  and  false  accuser  by  hanging  the  weak 
and  innocent  victim  of  his  malice,  will  admire  the  virtue  of  a  civil 
magistrate  who  made  the  parties  feel  that  they  were  not  equal.  "  Judge 
Smith,"  says  his  eulogist,  "did  not  make  his  decision  turn  on  the  let 
ter  of  the  law,  or  on  any  other  technicality  of  the  pettifogger."  True 
enough ;  but  is  it  not  just  possible  that  even  a  pettifogger,  whose 
worst  vice  is  adherence  to  the  law,  may  be  a  safer  sort  of  person  in  the 
land  than  one  whose  great  glory  is  to  trample  it  under  foot  ?  The 
fame  of  judges  who  throw  away  the  scales,  clutch  at  the  sword  alone, 
and  smite  contrary  to  the  law,  is  not  a  possession  generally  coveted  by 
men  in  ermine ;  but  Mr.  Adams's  compliments  apply  not  less  to  Jef 
freys  and  Scroggs  and  Saunders,  to  Herod  and  Ananias,  to  Fouquier 
Tinville  and  Hunter  and  Holt,  than  to  the  man  whom  he  describes  as 
a  judicial  gladiator,  fighting  against  legal  justice  on  the  side  of  Ram 
sey. 

Mr.  Adams's  summary  of  Judge  Smith's  decision  could  have  been 
much  abridged  if  he  had  stated  simply  that  this  remarkable  arbiter 
of  men's  rights  pronounced  everything  that  Ramsey  had  done  to  be 
valid  and  admirable,  and  everything  done  by  those  opposed  to  him 
dishonest,  unlawful,  and  worthy  of  unmitigated  reprobation.  So  far, 
indeed,  did  the  largeness  of  his  spirit  carry  him,  that,  to  borrow  the 
language  of  Mr.  Adams,  "  even  the  injudicious  subscription  for  the 
9,500  shares  of  stock  by  Ramsey  and  his  friends,  on  which  they  had 
not  attempted  to  vote  at  the  election,  was  declared  in  point  of  law 
regular,  valid,  and  binding."  There  is  a  significance  in  the  wcfrd 
"even"  at  the  beginning  of  this  sentence  which  implies  very  strongly 
that  Mr.  Adams  had  not  expected  so  much  as  this  from  anybody  on 


MISCELLANEOUS.  127 

the  bench.  Ramsey,  reckless  as  he  was,  feared  to  tread  where  the 
headlong  Smith  rushed  in.  He  was  bold  enough  to  fabricate  the 
fraudulent  stock,  but  he  did  not  vote  it,  as  he  might  have  done  had 
he  dreamed  that  there  was  on  the  face  of  the  earth  a  judge  prepared 
to  pronounce  his  fraud  "regular,  valid,  and  binding."  It  is  not 
strange,  observing  the  temper  of  Judge  Smith's  opinion,  that,  on  the 
morning  after  it  was  published,  he  was  secretly  closeted  with  Ramsey's 
attorneys,  and  engaged,  as  he  himself  stated,  "in  looking  over  the 
findings  of  fact  and  comparing  and  adjusting  them  with  his  opinion." 
A  single  circumstance  will  show  that  this  labor  was  not  in  vain.  In 
the  body  of  the  opinion  the  judge  declared,  referring  to  Ramsey's 
secret  issue  of  stock  :  "The  subscription  for  the  9,500  shares  by  Hen- 
dricks,  Hunt,  and  others,  I  think  made  them  stockholders  upon  such 
stock  of  said  corporation.  They  paid  the  ten  per  cent  upon  it,  and 
can  not  avoid  the  payment  of  the  balance  due  upon  such  subscription. 
The  company  has  had  the  ten  per  cent,  and  the  subscription  was 
made  in  the  regular  subscription-book  in  the  hands  of  the  officers  of 
the  company,  and  created  an  absolute  legal  obligation  to  take  the 
stock  and  PAY  for  the  same. "  And  in  framing  his  conclusions  of  law, 
there  was  one  inserted,  as  the  original  paper  011  file  in  his  court  shows, 
to  correspond  with  this  paragraph  of  his  opinion  :  "  That  the  9,500 
shares  of  stock  subscribed  for  in  the  books  of  said  company,  by  Jared 
Goodyear,  Eobert  H.  Pruyn,  John  Eddy,  William  A.  Rice,  Eliakim 
R.  Ford,  John  Cook,  Joseph  H.  Ramsey,  James  Hendricks,  Minard 
Harder,  and  Harvey  Hunt,  whereon  ten  per  cent  was  paid  in  money 
on  the  5th  day  of  August,  1869,  thereupon  became,  and  were,  and 
still  are,  lawful  and  valid  shares  of  the  capital  stock  of  said  company. " 

It  is  needless  to  say  that  his  Honor  Judge  Smith,  when  he  wrote 
this  "conclusion,"  and  the  passage  in  his  opinion  with  which  it  was 
made  to  correspond,  meant  to  do  a  very  kind  thing  for  the  men  of 
Ramsey's  faction.  Indeed,  as  we  have  seen,  he  was  out-Ramseying 
Ramsey.  The  stock  which  he  had  pronounced  "valid"  was  never  in 
tended  to  be  taken  or  kept ;  the  ten  per  cent  paid  on  it  had  actually 
been  "lifted"  out  of  the  treasury  of  the  company  ;  not  a  penny  had 
been  advanced  by  the  nominal  holders,  and  it  was  expressly  under 
stood  that  they  were  not  to  concern  themselves  about  any  future  pay 
ments.  Moreover,  the  stock  had  been  created  merely  to  serve  an 
emergency  which  was  now  past.  Nothing,  therefore,  could  have  been 
of  more  startling  or  disastrous  import  to  Ramsey  and  his  confederates 
than  a  judicial  conclusion  of  law  to  the  effect  that  they  actually  owned 
the  shares  for  which  they  had  subscribed,  and  were  bound  to  pay  the 
balance  due  upon  them  into  the  treasury  of  the  company,  to  wit,  the 
sum  of  8855,000. 

No  wonder  that  when  Ramsey's  attorneys  were  employed  "  in  look 
ing  over  the  findings  of  fact,  and  comparing  and  adjusting  them  with 


128  MISCELLANEOUS. 

the  opinion,"  they  made  haste  to  correct  this  shocking  blunder,  and 
to  rid  their  clients  of  the  liability  it  would  impose  on  them.  It  was 
too  late  to  tinker  the  opinion,  which  was  already  in  print,  but  the 
damaging  "  conclusion"  was  stricken  out,  and  the  judge,  by  this  last 
and  efficient  bit  of  service,  added  nearly  a  million  dollars'  worth  of 
thanks  to  the  heavy  debt  of  gratitude  which  the  Ramsey  people  owed 
him  already. 

Everything  being  decided  in  favor  of  Eamsey,  the  judgment,  of 
course,  included  a  decree  that  he  and  his  board  were  lawfully  elected, 
although  they  had  received  a  very  small  minority  of  the  votes.  The 
scales  being  discarded,  the  majority  weighed  no  more  than  the  minor 
ity.*  An  order  was  accordingly  made  that  Ramsey  and  his  board  "  be 
immediately  let  into  possession."  The  first  thing  they  did  was  to  put 
the  property  forever  out  of  the  owners'  reach  by  a  perpetual  lease  to 
the  Hudson  and  Delaware  Canal  Company.  This  was  not  all  or  nearly 
all.  Within  one  month  after  Ramsey  and  his  board  got  possession, 
they  voted  to  him,  at  his  own  request,  and  on  his  own  dictation,  two 
sums  of  money,  amounting  in  the  aggregate  to  $62,802.25,  and  1,330 
shares  of  stock,  worth  at  par  $133,000.  If  this  was  not  a  mere  gra 
tuity — a  naked  robbery  of  the  stockholders — it  was  based  on  some 
transaction  grossly  corrupt ;  for  Ramsey  refused  to  explain  the  ground 
of  it,  and  the  board  has  ever  since  steadily  resisted  all  efforts  to  inves 
tigate  it. 

This  cause  it  took  but  little  time  to  dispose  of.  In  two  months 
from  the  day  when  the  stockholders  were  called  into  court — "two  lit 
tle  months  or  ere  those  shoes  were  old  " — they  were  turned  out,  de 
spoiled  of  their  property,  and  branded  as  fraudulent  conspirators  for 
trying  to  hold  it.  We  would  suppose  that  this  could  not  be  a  very 
expensive  operation.  On  a  road  at  once  so  short  and  so  rough,  the 
tolls  should  not  be  heavy.  The  justice  which  the  Church  party  got 
in  Judge  Smith's  court  ought  to  be  a  cheap  article,  since  it  has  no 
other  quality  to  make  it  desirable.  But  costs  were  awarded — extra 

*  The  statements  both  of  Mr.  Adams  and  Mr.  Curtis  are  obscure  concerning  the  rotes 
given  by  the  respective  parties  at  the  election.  The  important  and  leading  fact,  however, 
is  well  established,  and  not  denied,  that  the  Church  party  owned,  and  held,  and  voted 
nearly  two  thirds  of  the  bona fide  stock;  and  the  Groesbeck  stock  was  voted  for  them 
besides  under  an  injunction  of  their  opponents.  Mr.  Adams  informs  us  that  Ramsey 
did  not  attempt  to  vote  any  part  of  the  9,500  shares.  If  he  voted  only  those  bonafde 
shares  which  he  held,  and  had  a  right  to  vote,  his  own  return  must  have  shown  him 
in  a  very  meager  minority.  But  the  court  declared  him  elected.  Whether  this  was  done 
by  throwing  out  of  the  count  all  the  votes  of  the  Church  party,  or  by  throwing  out  only 
enough  to  put  them  in  a  minority,  or  by  adding  to  Ramsey's  votes  others  which  were  not 
cast  at  all  by  either  party,  or  by  transferring  votes  actually  cast  for  Church  to  Ramsey, 
for  whom  they  were  not  cast,  we  have  no  information.  All  these  modes  of  electing  a 
defeated  candidate  are  adopted  when  occasion  requires  by  Philadelphia  return  judges,  and 
sometimes  they  are  very  ingeniously  compounded  together. 


MISCELLANEOUS.  129 

costs — not  in  fayor  of  the  plaintiffs,  nor  against  the  defendants  in  a 
body,  but  against  some  of  the  defendants  in  favor  of  other  some.  An 
ex-Judge  of  the  Court  of  Appeals  was  appointed  assessor  to  aid  in 
fixing  the  amount,  and  it  was  fixed  at  ninety-two  thousand  dollars  I 
An  economical  nation  might  carry  on  a  small  war  without  spending 
more  than  it  costs  a  private  citizen  to  defend  his  plainest  right  in  a 
Eochester  court. 

The  Church  party  appealed  to  the  General  Term,  where  all  the 
rulings  of  Judge  Smith  were  reversed,  through  and  through, 'except 
upon  the  validity  of  the  election.  That  was  affirmed,  on  the  ground 
that  he  was  competent  to  pass  upon  it ;  that  is  to  say,  he  had  legal 
authority  which  made  his  determination  upon  the  point  conclusive. 
How  he  got  power  to  decide  that  or  anything  else  between  parties  who 
were  on  the  same  side,  and  not  at  issue,  we  do  not  pretend  to  conject 
ure.  But  the  Code  especially  delights  in  jurisdictional  absurdities. 
This,  however,  has  gone  up  to  the  Court  of  Appeals,  et  adliuc  sub 
judice  Us  est. 

If  a  dispute  like  this  had  occurred  in  a  country  where  the  principles 
and  the  rules  of  the  common  law  prevail,*  it  would  have  been  deter 
mined  easily  and  satisfactorily,  without  parade  or  trouble.  An  action  at 
law  would  have  brought  the  defaulting  agent  of  the  corporation  to 
justice  very  soon  ;  or  a  bill  in  equity  would  have  called  everybody  in 
terested  into  court  at  once,  given  them  all  a  full  hearing,  and  made  a 
clean  settlement  of  the  whole  matter.  But  here  was  a  petty  offender, 
strong  only  in  the  weakness  of  the  law,  who  was  able  to  defy  justice 
and  to  triumph  over  it.  The  men  whom  he  had  wronged  took  after 
him  with  the  Code  :  twenty-eight  injunctions  were  exploded  from  dif 
ferent  and  distant  parts  of  the  State  ;  the  attack  and  the  defense  raised 
such  an  uproar  that  the  framework  of  society  was  in  danger  of  being 
broken  ;  actual  violence  was  commenced  and  extensive  bloodshed  was 
imminent ;  yet  he  retained  his  possession  of  all  he  took,  and  took  as 
much  more  as  he  wanted.  To  drive  this  nibbling  rat  from  the  cor 
poration  cupboard,  they  gave  chase  with  force  and  noise  and  numbers 
enough  to  hunt  down  a  Bengal  tiger,  and  the  vermin  was  not  dislodged 
after  all.  The  Code  is  not  a  "  terror  to  evil-doers,"  nor  "a  praise  unto 
them  that  do  well." 

It  is  a  rule  of  epic  poetry  that  the  story  stops  when  the  hero  has 
reached  the  zenith  of  his  fortunes.  As  the  "Iliad"  closes  when  the 
wrath  of  Achilles  is  appeased  by  dragging  the  body  of  Hector  around 
the  walls  of  Troy,  and  as  the  "  JEneid  "  concludes  abruptly  when  the 
death  of  Turnus  makes  ^Eneas  master  of  Italy,  so  Mr.  Adams  closes 

*  It  can  hardly  be  worth  while  to  say  that  by  common  law  we  do  not  mean  merely 
the  ancient  laws  and  customs  of  England,  but  those  rules  and  principles  which  the  first 
colonists  transplanted  here  for  the  protection  of  life,  liberty,  and  property,  and  which 
have  since  been  modified  from  time  to  time  as  experience  has  proved  to  be  necessary. 
9 


130  MISCELLANEOUS. 

his  account  of  Ramsey's  high  career  at  the  point  of  time  when  his  cheat 
upon  the  owners  of  the  Albany  and  Susquehanna  Railroad  was  com 
pletely  successful.  But  Mr.  Curtis,  in  his  matter-of-fact  production, 
carried  the  narrative  a  little  further  on. 

Ramsey,  being  elated  with  his  conquest  of  the  Albany  and  Susque 
hanna,  determined  to  invade  the  Erie,  in  hopes  of  subjugating  that 
also.  He  was  not  a  creditor  nor  a  stockholder  ;  but  to  give  him  nomi 
nal  status,  Groesbeck — the  same  Groesbeck — bought  for  him  thirteen 
shares  of  stock  and  six  bonds.  With  these  he  went  to  Delhi,  the  most 
secluded  county  town  in  the  State,  situated  twenty  miles  from  any  rail 
way  line,  and  accessible  only  by  mountain-roads.  There  he  found 
Judge  Murray,  one  of  the  thirty-three,  and  to  him  he  complained  that 
he  was  in  danger  of  losing  the  money  he  had  invested  in  these  bonds  and 
this  stock,  by  reason  of  certain  mismanagement  of  its  officers  and  direct 
ors,  the  recital  of  which  covered  three  hundred  and  forty  folios.  On 
this  complaint  the  judge  gave  him,  not  merely  an  injunction,  but  a 
great  quantity  of  injunctions  ;  suspended  a  majority  of  the  directors, 
appointed  a  receiver,  restrained  the  suspended  directors  from  making 
defense  in  this  or  any  other  suit  involving  their  official  conduct,  com 
manded  the  unsuspended  directors  to  see  that  the  company  was 
promptly  represented  by  such  counsel  as  they  should  select,  ordered 
that  no  creditor  but  Ramsey  should  institute  any  suit  to  collect  or  se 
cure  his  debt,  and  directed  the  defendants,  under  penalty  of  contempt, 
to  bring  no  cross-suit  which  might  embarrass  the  plaintiff  in  his  prose 
cution  of  this  one.  Under  these  orders  Ramsey  managed  to  have  the 
defendants  promptly  represented  by  a  family  connection  of  his  own. 
When  this  destructive  missile  burst  on  the  men  of  Erie  at  their  New 
York  office,  it  no  doubt  produced  some  terror.  They  immediately 
sought  the  ablest  counsel  they  could  find,  and  directed  Messrs.  Field 
and  Shearman,  to  adopt  energetic  measures  of  defense.  But  those 
gentlemen  were  informed  that  they  could  not  appear,  their  clients 
being  already  represented  by  an  attorney  who  had  been  selected  for 
them,  whom  they  did  not  know,  and  whose  name  even  they  were  not 
permitted  to  learn.  Nor  could  they  discover  who  was  the  person  ap 
pointed  to  take  charge  of  their  client's  property,  and  exercise  over  it  the 
unlimited  control  of  a  receiver.  The  alarm  of  the  parties  was  greatly 
increased  when  they  learned  that  their  rights  were  to  be  in  the  keep 
ing  of  David  Groesbeck,  the  man  who  had  aided  Ramsey  in  all  his  pre 
vious  frauds,  and  whose  sense  of  moral  and  legal  obligation  may  be 
learned  from  a  fact  stated  by  Mr.  Adams  ;  namely,  that  he  defended 
Ramsey's  fabrication  of  fraudulent  stock  and  his  appropriation  of  the 
Albany  and  Susquehanna  Company's  bonds,  and  "declared  that  under 
the  same  circumstances  and  fighting  the  same  men  he  himself  would 
have  gone  as  far,  and  further,  too,  if  necessary." 

Here  was  such  a  case  as  no  community  living  under  any  kind  of  a 


MISCELLANEOUS.  131 

code  had  ever  seen  before.  All  the  property  of  a  corporation  worth 
sixty  million  dollars,  and  employing  in  its  service  the  daily  labor 
of  twenty-five  thousand  hands,  was  snatched  from  the  owners  in  the 
twinkling  of  an  eye  by  an  order  made  behind  their  backs,  and  all  their 
rights  and  the  rights  of  their  employes  and  creditors  were  put  at  the 
mercy  of  a  man  who,  speaking  of  these  very  owners,  had  openly 
avowed  that  in  dealing  with  them  he  would  be  restrained  by  no  moral 
principle  ;  that  fighting  the  same  men  he  would  betray  the  most  sacred 
trust,  clandestinely  appropriate  their  property,  make  false  papers  to 
cheat  them,  and  injure  them  otherwise  by  going  still  further  if  neces 
sary.  All  these  perilous  notions  of  right  and  wrong  were  fully  shared 
by  the  plaintiff,  who  had  secured  an  attorney  for  the  defense,  and  so 
made  himself  dominus  litis  on  both  sides.  Ex parte  injunctions  had 
often  before  this  torn  men's  property  out  of  their  possession  without  a 
hearing,  but  the  Ehadamanthian  justice  of  a  subsequent  trial  was 
always  conceded.  Here  the  right  to  make  even  an  ex  post  facto  de 
fense  was  taken  out  of  their  hands. 

We  see  no  reason  to  suppose  that  Judge  Murray  was  not  both  a 
competent  and  an  honest  man.  He  acted  according  to  the  Code, 
which  never  refuses  to  do  any  amount  of  wrong  if  it  can  be  put  into 
the  form  of  an  injunction.  But  the  Code  itself  could  not  endure  such 
a  pressure  as  this.  Messrs.  Field  and  Shearman,  after  much  difficulty 
and  delay,  got  on  the  track  of  the  unknown  person  who  was  represent 
ing  their  clients,  wrung  the  case  out  of  his  hands,  and  gained  a  posi 
tion  where  the  plaintiff  was  compelled  to  face  them  with  his  proofs. 
He  broke  down  utterly,  and  his  complaint  was  dismissed.  Afterward 
he  and  his  backers  raised  a  clamor  that  he  had  been  forced  to  trial 
with  his  hands  tied.  In  truth,  his  hands  were  as  loose  as  need  be,  but 
they  were  not  clean  enough  to  be  shown. 

The  general  question  of  ethics,  which  Mr.  Adams  raises,  would 
tempt  us  to  an  extended  discussion  if  we  had  unlimited  space  for  it. 
As  it  is,  we  can  not  let  the  subject  pass  without  saying  that  Brougham 
is  not  a  leader  fit  to  be  followed,  even  in  a  matter  so  simple  as  every 
moral  question  must  necessarily  be  to  a  man  who  believes  in  the  New 
Testament.  Brougham  was  nothing  if  not  sensational,  and  before  such 
an  audience  as  he  addressed  in  the  Queen's  case  the  impulse  to  be  ex 
travagant  was  more  than  he  could  resist.  We  prefer  the  higher  and 
more  ancient  authority  of  Roger  L'Estrange,  whose  "  Character  of  an 
Honest  Lawyer,"  written  in  the  English  of  the  seventeenth  century, 
is  at  once  accurate  and  epigrammatic.  Supposing  a  candid  seeker  for 
truth  to  be  still  unsatisfied,  let  him  read  Sharswood's  admirable  book 
entitled  "Legal  Ethics,"  supplemented,  if  need  be,  with  Redfield's 
article  in  the  July  number  of  the  "American  Law  Register."  The 
lego-theological  side  of  the  subject  is  presented  by  Judge  Agnew,  in 
his  address  to  a  Western  college  on  the  "Philosophy  and  Poetry  of  the 


132  MISCELLANEOUS. 

Law  "  ;  and  the  theologico-legal  aspect  is  displayed  by  Sydney  Smith, 
in  his  sermon  on  "  The  Lawyer  that  tempted  Christ."  That  member 
of  the  profession  who  receives  the  spirit  of  these  teachings  into  his 
heart,  and  acts  accordingly,  will  be  worthy  of  his  high  vocation  while 
he  lives,  and  to  use  the  words  of  old  Eoger,  "  When  Death  calls  him 
to  the  Bar  of  Heaven  by  a  Habeas  Corpus  cum  Causa  he  will  find  his 
Judge  his  Advocate,  nonsuit  the  Devil,  obtain  a  Liberate  from  all  his 
infirmities,  and  continue  still  one  of  the  Long  Role  in  Glory." 

Disdaining  the  advantage  of  Brougham's  eccentric  theory,  and  try 
ing  Messrs.  Field  and  Shearman  by  the  severer  standard  of  the  better 
men  whose  works  we  have  cited,  what  have  they  done  to  merit  re 
proach  ?  or  wherein  have  they  come  short  of  their  duty  in  all  this  diffi 
cult  business?  The  only  semblance  of  a  specific  accusation  is,  not 
that  they  took  up  an  unjust  cause,  but  that  they  were  retained  by  a 
bad  client.  Mr.  Adams  thinks  it  very  sensible  and  proper  to  make  a 
grave  exhibition  of  this  charge,  and  to  circulate  it  far  and  wide  over 
the  world  ;  therefore  (and  only  therefore)  we  are  not  permitted  to  say 
in  plain  terms  that  it  is  most  absurd  and  wicked. 

If  no  counselor  can  be  concerned  for  Fisk  and  Gould  in  any  case 
whatever  without  becoming  infamous,  ifc  follows  that  no  court  can, 
without  incurring  a  similar  penalty,  extend  the  protection  of  the  law 
to  their  plainest  rights.  They  are  mere  outlaws  ;  they  may  be  slan 
dered,  swindled,  robbed  with  impunity,  "and  it  shall  come  to  pass 
that  whosoever  findeth  them  shall  slay  them."  *  If  this  be  consistent 
with  the  genius  of  our  institutions,  we  have  misapprehended  those 
provisions  of  the  fundamental  law  which  declare  that  the  courts  are 
open  to  all  men,  and  that  all  shall  have  a  fair  trial  with  counsel  to 
assist  them  in  getting  justice. 

This  style  of  attack  upon  Mr.  Field  looks  to  us  like  a  very  unmis 
takable  tribute  to  his  good  fame.  The  character  of  a  lawyer  must  be 
more  than  commonly  spotless  when  his  enemies  have  no  material  for 
defaming  him  except  what  they  get  by  raking  about  among  the  faults 
and  follies  of  his  clients.  But  that  society  is  a  very  unsafe  one  to  live 
in  whose  sense  of  justice  will  permit  one  man  to  be  hunted  down 
merely  because  the  wolf's  head  has  been  placed  on  another.  The  repu 
tation  of  lawyers — which  is  the  life  of  their  lives — will  be  extremely 
precarious,  however  virtuous  their  own  acts  may  have  been,  if  the  con 
centrated  odium  of  all  their  clients'  sins  can  be  cast  upon  themselves. 

The  Church  party — that  is  to  say,  the  proprietors  of  the  Albany 
and  Susquehanna  Eailroad — had  a  cause  as  just,  legal,  and  fair  as  any 
court  ever  saw.  They  had  been  remorsely  plundered  by  a  gang  of 
reckless  knaves,  who  made  no  secret  of  their  intentions  to  repeat  the 
robbery  in  the  same  as  well  as  in  other  forms.  Messrs.  Field  and 

*  This  was  written  and  in  the  hands  of  the  printers  before  the  assassination  of 
Colonel  Fisk.— ED. 


MISCELLANEOUS.  133 

Shearman  accepted  the  retainer  of  these  injured  parties,  and  gave  them 
the  promise  of  such  redress  and  protection  as  they  could  legally  obtain 
for  them.  Now  it  is  charged  that  this  engagement  to  procure  justice 
by  legal  means,  in  a  perfectly  upright  case,  was  a  prostitution  by 
Messrs.  Field  and  Shearman  of  their  talents  and  influence,  because  one 
or  two  of  the  parties  thus  injured  are  supposed  to  have  been  previous 
ly  engaged  in  other  transactions  in  which  they  were  themselves  to 
blame.  Whether  this  be  true  or  false,  it  furnished  no  reason  to  Messrs. 
Field  and  Shearman  for  rejecting  the  case  on  moral  grounds.  If  the 
cause,  though  just,  was  likely  to  become  unpopular  because  Fisk  and 
Gould  were  in  it,  that  was  an  additional  reason  for  taking  it.  Mere 
public  clamor  will  not  deter  any  honorable  man  from  the  performance 
of  a  duty  ;  on  the  contrary,  he  is  excited  to  higher  efforts  when  "  the 
heathen  rage  and  the  people  imagine  a  vain  thing. " 

That  they  behaved  with  scrupulous  uprightness  in  the  progress  of 
the  cause,  and  used  no  unfair  means  to  reach  the  ends  of  justice,  is  a 
proposition  which  will  not  be  denied  unless  by  some  who  think  that  it 
is  wrong  in  all  circumstances  to  take  out  an  ex  parte  injunction.  Cer 
tainly  the  law  which  allows  this  mode  of  proceeding  is  entitled  to  no 
commendation.  But  while  it  is  in  full  force  it  may  be  used  for  a 
proper  purpose  with  a  safe  conscience.  Every  man  is  justified  in  de 
fending  the  right  against  the  wrong  with  such  weapons  as  the  law  puts 
into  his  hands.  Even  L'Estrange's  "Honest  Lawyer,"  rigid  as  he  is, 
"  uses  the  nice  snapperadoes  of  practice,  in  a  defensive  way,  to  coun 
termine  the  plots  of  knavery,  though  he  had  rather  be  dumb  than 
suffer  his  tongue  to  pimp  for  injustice,  or  club  his  parts  to  bolster  up 
a  cheat  with  the  legerdemain  of  law-craft. " » 

But  then  it  may  be  said  that  Mr.  Field,  being  the  author  of  the 
Code,  is  responsible  for  the  law  itself,  and  for  the  mischief  it  produces 
in  other  hands  as  well  as  his  own.  The  fact  may  be  assumed  too  has 
tily.  He  is  not  the  author,  or  supporter,  or  approver  of  that  system 
which  we  have  called  the  Code  in  this  paper.  Whenever  we  have  said 
"Code,"  we  meant  the  New  York  system  of  jurisprudence,  a  very 
small  part  of  which  was  furnished  by  him.  A  piece  of  his  work  was 
taken  and  joined  on  the  half-demolished  ruins  of  the  common  law, 
and  afterward  there  were  added  to  both  the  outrageous  provisions 
which  have  made  such  confusion  and  conflict  in  the  jurisdiction  of  the 
courts.  That  he  meant  well  by  what  he  did  has  never,  we  believe, 
been  doubted.  If  he  erred,  his  error  was  shared  by  thousands  of  the 
best  men  and  truest  philanthropists  in  Europe  and  America  ;  and  the 
faith  of  many  in  "law  reform,"  like  that  of  Joanna  Southcote's  disci 
ples  in  their  "  Shiloh,"  is  robust  enough  to  live  on  under  all  the  dis 
couragement  of  past  failures.  Let  us  hope  that  the  pure  benevolence 
of  their  efforts  will  meet  its  reward  in  the  higher  success  of  a  far  bet 
ter  reform,  which  may  restore  us  to  the  golden  age  of  the  law. 


134:  MISCELLANEOUS. 

The  Code  actually  prepared  by  Mr.  Field  and  the  commission 
which  he  headed  has  not  had  a  trial  in  New  York.  When  a  portion 
of  it  was  torn  from  its  context  and  united  with  a  mutilated  part  of 
the  common  law,  the  symmetry  of  both  was  destroyed,  and  confu 
sion  became  unavoidable.  The  Legislature,  when  they  abolished  the 
old  forms  of  pleading,  rejected  the  new  forms  with  which  Mr.  Field 
proposed  to  supply  their  place  ;  these  4atter  were  scientific  and  logical, 
and  would  have  saved  much  of  the  evil  which  has  happened  for  want 
of  them.  It  was  the  experiment,  which  has  always  failed,  of  putting 
new  wine  into  old  bottles.  In  some  of  the  Western  States  they  have 
tried  the  Code  pure  and  simple,  and  very  wise  men  are  animated  with 
the  hope  of  its  complete  success.  Mr.  Field  has  no  lack  of  adherents 
at  home  and  abroad,  who  believe  in  the  Code  apparently  on  the  prin 
ciple  of  that  Roman  citizen  who  said  he  would  rather  be  wrong  with 
Cato  than  right  with  all  the  rest  of  the  world.  No  doubt  Mr.  Field  is 
a  better  man  than  Cato  ever  was  ;  but  we  are  not  "ravished  with  the 
whistling  of  a  name,"  and  therefore  we  say  to  all  Americans  who  are 
still  permitted  to  enjoy  the  blessing  of  the  common  law,  that  they 
should  watch  over  that  inheritance  faithfully,  and  show  no  quarter  to 
codifiers.  Let  them  lay  to  their  hearts  the  solemn  warning  of  the 
Hebrew  prophet :  "  Walk  in  the  old  paths ;  stand  upon  the  ancient 
ways  ;  observe  them  well,  and  be  ye  not  given  unto  change." 

J.  S.  BLACK. 


THE  CHARACTER  OF  MR.  SEWARD.— REPLY  TO  C.  F. 

ADAMS,  SB. 

To  the  Hon.  Charles  Francis  Adams  : 

AMO^G  a  certain  class  of  the  American  people  a  desire  prevails 
that  your  "  Memorial  Address  "  on  the  late  William  H.  Seward  should 
receive  a  fuller  examination  than  Mr.  Welles  has  given  it.  His  papers 
are  very  strong  and  clear  ;  but  there  are  certain  fundamental  questions 
which  he  does  not  touch,  and  which  the  friends  of  constitutional  gov 
ernment  can  not  allow  to  be  "  washed  in  Lethe  and  forgotten. "  In 
my  attempt  to  supply  some  of  his  omissions,  I  address  you  directly, 
because  in  that  form  I  can  best  express  my  great  respect  for  you  while 
I  try  to  expose  the  errors  which  I  think  I  have  detected  in  your  ad 
dress. 

Your  reputation  for  stainless  integrity,  for  great  talents,  and  for 
liberal  principles,  gives  your  words  almost  the  authority  of  an  oracle. 
There  is,  perhaps,  no  man  in  this  country  whose  naked  assertion  would 
go  further  than  yours,  at  home  or  abroad.  If  you  have  pronounced 
an  erroneous  judgment  on  an  important  matter,  it  should  be  subjected 
to  a  free  revision. 


MISCELLANEOUS.  135 

This  is  an  important  matter.  Mr.  Seward  was  so  connected  with 
the  greatest  events  of  the  last  twenty  years,  that  a  misrepresentation 
of  his  life  is  a  falsification  of  public  history.  Besides,  he  differed  so 
widely  from  all  his  predecessors  and  many  of  his  contemporaries,  that 
unqualified  approval  of  him  implies  the  severest  condemnation  of 
them.  Your  own  consciousness  of  this  is  hetrayed  in  your  harsh  de 
nunciations  of  those  who  committed  no  crime  but  that  of  being  op 
posed  by  him.  If  Mr.  Seward  was  not  a  wise  and  virtuous  man — if 
he  was  unfaithful  to  his  public  duties — if  his  policy  tended  to  the  cor 
ruption  of  morals  and  the  consequent  destruction  of  popular  liberty — 
if  he  was  not  true  to  the  Constitution  and  laws  which  he  often  swore 
to  execute — then  you  have  done  a  most  pernicious  wrong  in  holding 
him  up  as  an  example  for  others  to  follow. 

I  hope  I  have  made  a  sufficient  apology  for  the  presumption  of 
which  I  seem  to  be  guilty  in  declaring  that  your  address  is  full  of  mis 
takes. 

Your  comparison  of  Mr.  Seward  to  Pericles  was  rash  and  extrava 
gant.  A  little  reflection  and  another  reading  of  Plutarch  will  satisfy 
you  that  the  New  York  politician  bore  not  the  slightest  resemblance 
to  the  illustrious  Athenian  whose  transcendent  genius  as  a  military 
commander,  orator,  scholar,  philosopher,  lawgiver,  judge,  and  jurist 
brought  the  greatest  people  of  the  earth  to  the  summit  of  their  glory 
in  arms,  in  arts,  and  in  literature.  The  difference  could  not  be  greater. 
As  men  they  had  something  in  common — organs,  dimensions,  senses, 
affections,  passions — and  each  was  remarkable  in  his  way ;  but  every 
thing  that  distinguished  them  from  the  rest  of  the  world  equally  dis 
tinguished  them  from  one  another.  They  were  alike  in  no  character 
istic  quality,  moral  or  mental.  There  is  not  one  parallel  passage  in 
their  history.  A  true  picture  of  Mr.  Seward's  life  will  not  show  a 
single  feature  which  can  be  recognized  even  as  a  miniature  likeness  of 
any  trait  in  that  of  Pericles. 

It  is  easy  to  eulogize  a  man  by  appropriating  to  him  the  qualities 
of  another  whom  history  has  already  consecrated  to  the  admiration  of 
mankind.  This  cheap  and  compendious  mode  of  dealing  with  the 
fame  of  an  ancient  hero  or  sage,  by  transferring  it  in  bulk  to  a  mod 
ern  favorite,  is  often  resorted  to,  and  almost  always  fails  of  its  pur 
pose.  Mr.  Lincoln  was  said  by  his  admirers  to  be  a  reproduction  of 
Socrates  ;  Eobespierre  was  the  Aristides  of  the  French  Assembly,  and 
Klootz  was  Anacharsis.  Congress  and  the  State  Legislatures  are  full 
of  Catos.  We  have  them  among  the  directors  of  the  Credit  Mobilier. 
I  have  heard  Mr.  Ames  described  as  one  who  was  Catonior  Catone — 
more  severely  virtuous  than  the  sternest  of  Roman  censors.  Your  ana 
logue  is  more  absurd  than  any  of  these.  You  might  as  well  have  car 
ried  it  out  by  showing  that  Mr.  Thurlow  Weed  was  the  counterpart 
of  Aspasia. 


136  MISCELLANEOUS. 

But  Pericles  is  not  the  only  famous  man  that  suffers  at  your  hands. 
Mr.  Seward  once  put  in  the  plea  of  insanity  for  a  negro  accused  of 
murder  ;  and  you  pronounce  his  argument  ' l  one  of  the  most  eloquent 
in  the  language."  The  speeches  of  such  men  as  Meredith,  O'Conor, 
and  Reverdy  Johnson  are  nowhere  ;  and  Erskine's  magnificent  defense 
of  Hatfield  is  rivaled  if  not  eclipsed. 

Your  claim  of  great  professional  ability  for  Mr.  Seward  is  one  of 
the  most  surprising  you  have  made.  The  conviction  is  almost  univer 
sal  that  he  knew  less  of  law  and  cared  less  about  it  than  any  other 
man  who  has  held  high  office  in  this  country.  If  he  had  not  aban 
doned  the  law,  he  might  have  been  a  sharp  attorney ;  but  he  never 
could  have  risen  to  the  upper  walks  of  the  profession.  He  would 
have  been  kept  in  the  lowest  rank,  not  by  want  oj  mental  capacity  or 
lack  of  diligent  habits,  but  by  the  inherent  defects  of  his  moral  nature. 
He  did  not  believe  in  legal  justice,  and  to  assist  in  the  honest  admin 
istration  of  it  was  against  the  grain  of  all  his  inclinations.  You  your 
self  are  frank  enough  to  own  that  it  was  "not  an  occupation  congenial 
to  his  taste,"  but  that,  on  the  contrary,  "he  held  it  in  aversion."  Be 
ing  so  constituted,  it  was  impossible  for  him  to  tread  the  mountain- 
ranges  of  jurisprudence.  He  might  as  well  have  tried  to  be  a  great 
theologian  without  faith  in  the  gospel.  In  fact,  this  was  Mr.  Seward's 
cote  faiUe  all  through.  If  he  had  understood  and  respected  the  laws, 
he  would  have  led  a  totally  different  life,  and  perhaps  the  general  de 
cay  of  our  political  institutions  would  not  have  taken  place. 

But  let  us  go  over  the  particular  case  of  which  you  have  given  a  most 
elaborate  report,  derived,  no  doubt,  from  Mr.  Seward  himself,  or  from 
somebody  else  who  was  decidedly  his  comes  and.fidus  Achates.  Your 
own  facts  and  conclusions  will  show  Mr.  Seward's  real  grade  as  a  lawyer, 
and  at  the  same  time  test  the  value  of  your  judgment  upon  his  merits. 

A  negro  was  indicted  for  the  willful,  deliberate,  and  cold-blooded 
murder  of  a  whole  family.  The  proofs  of  his  guilt  were  very  clear, 
and  the  public  mind  was,  naturally  and  justly,  pervaded  with  a  desire 
that  he  should  suffer  the  punishment  due  to  him  by  the  laws  of  God 
and  man.  It  was  legally  necessary  that  somebody  should  appear  for 
him  at  the  trial.  But  you  say  that  this  duty  was  made  so  dangerous 
by  the  excited  state  of  public  feeling,  that  when  the  trial  was  called 
all  the  crowd  of  professional  men  hung  back  in  terror — all  except  Will 
iam  Henry  Seward;  but  he,  defying  the  "enormous  hazard,"  and 
taking  his  life  in  his  hand,  stepped  forward  and  undertook  the  service. 
And  this  you  declare  to  have  been  "  a  scene  of  moral  sublimity  rarely 
to  be  met  with  in  the  paths  of  our  common  experience." 

The  moral  sublimity  of  this  scene  will  cease  to  dazzle  you  when 
you  recollect  that  no  counselor  ever  exposes  himself  to  the  slightest 
danger  by  defending  a  criminal.  There  is  no  instance  on  record  in 
which  the  public  wrath,  roused  by  a  crime,  has  been,  vented  in  acts 


MISCELLANEOUS.  137 

of  violence  upon  the  counsel  of  the  malefactor,  for  putting  in  truth 
fully  and  honestly  the  best  answer  he  could  to  the  charge.  Even 
falsehood,  though  it  provokes  contempt,  is  largely  tolerated  because 
it  can  do  no  harm  in  a  competent  court.  The  assertion  that  Mr.  Sew- 
ard  was  in  personal  danger  is  contradicted  by  all  experience  in  similar 
cases,  and  therefore  wholly  incredible.  This  acting  as  volunteer  coun 
sel  for  criminals  was  then,  and  has  always  been,  as  safe  as  it  is  com 
mon.  The  heroism  of  it  in  this  case  was  an  after-thought  possibly  of 
the  hero  himself —probably  of  the  comes  ;  certainly  it  did  not  come 
spontaneously  into  your  head. 

The  dramatic  interest  of  your  story  is  further  spoiled  by  the  fact 
that  he  did  not  volunteer  unexpectedly,  at  the  moment  when  the  cause 
was  called,  when  everybody  else  was  scared,  and  after  the  judge  had 
become  hopeless  of  getting  an  attorney  bold  enough  to  assist  him  in 
complying  with  the  forms  of  law.  In  Mr.  Seward's  speech,  as  quoted 
by  you,  he  referred  to  a  preliminary  hearing  which  lasted  two  weeks, 
and  at  which  he  had  appeared  for  the  prisoner.  He  was  then  publicly 
connected  with  the  cause  as  fully  as  he  was  afterward.  The  knowl 
edge  of  the  whole  bar  that  Mr.  Seward  was  already  concerned  might 
have  accounted  to  you  for  their  silence  at  the  trial,  without  the  impu 
tation  of  cowardice  which  your  statement  implies.  It  is  not  certain, 
but  the  inference  is  a  fair  one  from  all  the  circumstances,  that  Mr. 
Seward  sought  the  case  anxiously,  as  furnishing  a  desirable  opportu 
nity  to  display  himself  before  the  people. 

The  insanity  of  the  negro  at  the  time  of  the  murder  was  the  only 
defense  Mr.  Seward  set  up  for  him.  It  was  utterly  false.  This  is  con 
clusively  shown  by  the  record.  The  jury  was  impartial,  honest,  and 
uncommitted  by  any  previous  expression  of  opinion  ;  the  ability  and 
integrity  of  the  judge  are  not  denied  ;  if  any  reasonable  doubt  of  the 
prisoner's  sanity  had  been  raised  by  the  proofs,  his  acquittal  would 
have  been  perfectly  certain.  But  the  jury,  upon  their  oaths,  found 
him  guilty,  and  the  judge,  satisfied  that  the  verdict  was  right,  pro 
nounced  sentence  of  death. 

The  sample  of  the  argument  which  you  produce  shows  that,  in 
stead  of  being  able  and  eloquent,  it  was  literally  no  argument  at  all. 
It  has  no  application  whatever  to  the  subject-matter  under  considera 
tion.  It  makes  no  allusion  to  the  evidence,  and  does  not  refer,  even 
in  the  remotest  manner,  to  any  rule  or  principle  of  law.  It  is  a  mere 
parade  of  his  own  magnanimous  and  disinterested  benevolence,  mani 
festly  not  intended  to  influence  the  tribunal,  but  to  attract  the  admira 
tion  of  the  outside  crowd  to  himself.  Nothing  could  be  more  injudi 
cious,  in  worse  taste,  or  more  out  of  place.  The  court  and  jury,  hav 
ing  a  case  of  life  and  death  in  their  hands,  and  feeling  the  weight  of 
their  obligation  to  decide  it  rightly,  must  have  listened  to  this  irrele 
vant  trash  with  painful  impatience. 


138  MISCELLANEOUS. 

Mr.  Seward,  "nothing  daunted"  by  the  righteous  judgment  of 
the  court  and  jury,  "persisted  in  interposing  every  possible  dilatory 
measure,"  and  thus  delayed  justice  from  time  to  time  until,  at  last, 
the  negro  died  in  prison.  Then  came  the  hour  of  his  triumph.  A 
post-mortem  examination  of  the  brain  made  by  seven  physicians  "dis 
played  indications  of  deep  chronic  disease."  This,  in  your  opinion, 
"  clearly  proved  "  that  he  "had  been  right  from  the  start"  ;  that  is  to 
say,  Mr.  Seward's  assertion  that  his  client  was  insane  at  the  time  of 
the  murder,  in  a  way  which  made  him  irresponsible  for  that  crime, 
though  contradicted  by  his  actions  during  life,  was  established  by  the 
condition  of  his  brain  after  death.  Your  acknowledged  good  sense, 
and  that  moderate  amount  of  physiological  science  which  you  possess 
in  common  with  all  well-informed  men,  should  have  prevented  you 
from  believing  this.  The  post-mortem  indications  of  a  brain-disease 
not  immediately  fatal  are  very  obscure  :  supposing  them  to  be  plainly 
traced,  no  anatomist  can  tell  how  long  or  how  short  a  time  the  disease 
existed  ;  it  may  have  existed,  and  it  often  does,  without  deranging  the 
mental  faculties  in  the  least ;  no  human  skill  can  find  anything  in  the 
matter  of  the  brain  from  which  a  specific  state  of  the  mind  can  be  in 
ferred  ;  and  it  is  a  monstrous  absurdity  to  suppose  that  seven  physi 
cians,  or  seven  hundred  of  them,  could,  by  dissecting  this  negro's  brain, 
demonstrate  that  he  was  afflicted  with  a  particular  form  of  mental  in 
sanity  which  irresistibly  impelled  him  to  commit  murder  two  years 
before  he  died. 

The  sequel  of  this  story,  as  you  tell  it,  would  show  that  Mr.  Seward 
not  only  sacrificed  himself,  but  magnanimously  plucked  down  ruin 
upon  his  political  friends.  Your  words  are  :  "Here  he  was  not  only 
injuring  his  own  interests,  but  those  of  the  party  with  which  he  was 
associated.  In  vain  did  it  labor  to  disavow  all  connection  or  sympa 
thy  with  him.  The  press,  on  all  sides,  thundered  its  denunciations 
over  his  head.  The  elections  all  went  one  way.  The  Democratic 
party  came  sweeping  into  the  ascendant.  And  all  about  the  life  of  a 
negro  idiot."  These  amazing  facts  were  not  known  or  suspected  be 
fore  you  uttered  them.  The  political  history  of  our  country  has  not 
instructed  us  that  all  the  elections  of  that  period  turned  upon  the  trial 
of  a  negro  at  Auburn,  New  York,  or  that  one  party  was  completely 
wrecked  and  another  swept  up  to  the  seats  of  power  merely  because 
Mr.  William  H.  Seward  tried  in  vain  to  procure  the  acquittal  of  a 
murderer  on  false  pretenses.  It  can  not  be  true.  The  odium  of  his 
conduct,  whatever  that  may  have  been,  was  all  his  own.  It  had  no 
possible  connection  with  any  question  at  issue  between  the  parties  of 
the  nation.  It  was  as  likely  to  produce  an  earthquake  as  the  great 
political  revolution  which  you  assert  to  have  been  its  consequence. 
The  good  faith  with  which  you  make  the  statement  is  not  questioned  ; 
but  it  is  such  an  outrage  on  historical  probability  as  no  prudent  writer 


MISCELLANEOUS.  139 

of  acknowledged  fiction  would  adopt.  Its  extravagance  would  deform 
the  plot  of  a  romance.  It  shocks  the  mind  of  an  intelligent  reader 
like  the  narrative  of  a  German  novelist  who  tells  how  the  peace  of  Eu 
rope  was  broken  by  a  naval  conflict  on  the  Ohio  River,  between  fleets  of 
English  cruisers  and  French  merchantmen,  in  1751,  when,  as  every 
schoolboy  knows,  the  Ohio  had  never  felt  the  pressure  of  any  craft 
heavier  than  a  birch  canoe. 

It  seems  that  Mr.  Seward  was,  about  the  same  time  or  a  little  be 
fore,  employed  for  another  negro — a  convict  in  the  State-prison,  who 
had  killed  one  of  his  associates.  Here  also  the  defense  was  a  false 
one.  You  dispatch  your  account  of  the  trial  by  saying  :  "  The  argu 
ment  rested  on  the  insanity  of  the  prisoner.  But  it  carried  no  weight. 
Within  a  month  the  convict  was  tried,  condemned,  and  executed." 
What  else  could  have  been  expected  ?  Do  you  think  this  felonious 
murderer  should  have  gone  unpunished  ?  If  yes,  why  ?  Because 
Seward  was  his  counsel  ?  Because  the  defense  was  a  false  one  ?  Or, 
simply  because  he  was  a  negro  ?  You  say,  in  a  mournful  tone,  that 
Mr.  Seward's  conduct  in  this  matter  "was  not  viewed  favorably  in  the 
neighborhood."  Are  you  not  the  most  unreasonable  man  in  the  world 
to  think  that  it  should  have  been  ?  Attempts  to  get  criminals  off  by 
false  pleas  are  often  forgiven,  especially  when  the  fraud  is  defeated  by 
the  justice  of  the  courts ;  but  they  are  ne*ver  regarded  with  approba 
tion  or  favor  by  an  honest  community. 

Mr.  Seward's  behavior  in  these  two  cases,  though  it  hardly  de 
serves  the  severe  and  universal  condemnation  which  you  say  it  re 
ceived  from  all  classes  of  the  people  who  witnessed  it,  was,  no  doubt, 
very  discreditable  to  a  man  of  mature  years  who  had  held  the  highest 
executive  office  in  his  State.  It  must  have  prepared  all  who  knew  him 
to  expect  that  his  course  as  a  politician  would  come  to  no  good.  That 
love  of  justice,  that  reverence  for  truth,  and  that  high  regard  for  the 
public  safety  which  he  did  not  display  in  his  forensic  efforts,  are  as 
necessary  to  a  statesman  as  a  lawyer.  We  will  see  if  you  have  exagger 
ated  his  merits  in  one  capacity  as  much  as  in  the  other. 

He  began  his  active  political  life  with  Anti-Masonry.  A  charge 
was  publicly  made  that  one  William  Morgan,  a  citizen  of  Western  New 
York,  had  been  forcibly  seized  by  Masons  and  taken  out  of  the  State 
to  prevent  him  from  revealing  the  secrets  of  their  society.  To  kidnap 
a  freeman  and  lawlessly  carry  him  away  beyond  the  reach  of  habeas 
corpus  or  other  relief  was  at  that  time  regarded  as  a  most  atrocious 
crime,  and  the  people  in  great  numbers  cried  aloud  for  the  punish 
ment  of  the  malefactors.  A  judicial  investigation  was  obviously 
proper  ;  the  accused  parties  were  indicted  and  tried.  Mr.  Seward  took 
no  part  in  the  legal  proceedings  which  were  instituted  to  ascertain  the 
truth  of  the  charges  and  to  punish  guilt  according  to  law.  That  was 
a  business  to  which  you  say,  with  truth,  "he  had  an  aversion."  He 


140  MISCELLANEOUS. 

set  himself  the  task,  ' '  more  congenial  to  his  taste,"  of  hissing  up 
popular  prejudice  against  those  who  were  known  to  be  innocent.  A 
faction  was  organized  which  became  locally  powerful.  He  worked 
himself  to  the  front  of  it,  and  was  elected  State  Senator. 

The  managers  of  this  political  enterprise  seem  to  have  had  no  sin 
cerity.  They  professed  to  believe  that  the  country  could  not  be  safe 
until  every  Freemason  was  excluded  from  office  and  stripped  of  his  in 
fluence  ;  but,  as  soon  as  they  could,  they  transferred  themselves  and 
their  followers,  without  reservation  of  body  or  soul,  to  another  party, 
which  John  Quincy  Adams  described  as  "  a  base  compound  of  Koyal 
Arch  Masons  and  Hartford  Convention  Federalists,  held  together  by 
no  bond  but  that  of  a  common  hatred  for  better  men  than  them 
selves."  They  fostered  the  growth  of  Anti-Masonry  until  it  was  large 
enough  to  sell — just  as  a  dealer  in  live-stock  fattens  a  calf  until  it  is 
ready  for  the  market,  and  then  lets  it  go  for  what  it  will  fetch.  That 
Mr.  Seward  had  any  faith  in  the  Anti-Masonic  creed  is  rendered  ex 
tremely  doubtful  by  the  alacrity  with  which  he  entered  the  service  of 
the  "base  compound,"  and  the  rewards  he  took  for  doing  so.  If  his 
indignation  was  actually  excited  by  the  abduction  of  Morgan,  he  must 
have  got  bravely  over  it  before  he  boasted  to  Lord  Lyons  of  his  own 
exploits  in  the  kidnapping  line.  The  just  and  reasonable  as  well  as 
the  charitable  conclusion  is,  that  on  these,  as  on  other  subjects  affect 
ing  the  rights  of  his  fellow-citizens,  he  had  no  convictions  whatever. 

You  are  out  in  your  chronology  when  you  say  that  Anti-Masonry 
made  him  Governor  of  New  York  for  two  terms,  unless  you  mean  to 
credit  Anti-Masonry  with  what  Whiggery  did  in  pursuance  of  the  bar 
gain  and  sale.  But  in  fact  Mr.  Seward,  before  his  election  as  Govern 
or,  had  shown  the  flexibility  of  his  political  principles  by  supporting 
Masons  as  heartily  as  he  had  ever  opposed  them.  It  can  not  be  said 
that  he  was  not  true  to  the  Whigs  as  long  as  he  was  with  them  and  of 
them,  or  that  he  did  not  earn  the  promotion  they  gave  him.  He  went 
through  thick  and  thin  for  tariffs,  banks,  internal  improvements  by 
the  General  Government,  distribution  of  surplus  revenue — all  their 
superstitions  ;  and  in  1840  he  kindled  in  the  general  blaze  of  enthusi 
asm  for  hard  cider  and  coon-skins.  He  never  once  broke  faith  with 
them  by  discountenancing  any  partisan  slander  which  could  weaken 
the  Democracy  in  its  desperate  struggle  to  preserve,  protect,  and  de 
fend  the  Constitution. 

There  is  no  evidence  that  he  ever  contaminated  his  fingers  with 
base  bribes,  or  put  into  his  own  pocket  the  wages  of  any  special  in 
iquity  ;  but  Mr.  Welles's  statement  is  undeniably  true  that  he  was  inti 
mately  associated  with  the  leaders  of  the  most  corrupt  rings  at  Albany 
and  "Washington,  and  devoted  much  of  his -parliamentary  skill  to  the 
promotion  of  their  schemes,  while  they  in  return  were  the  most  effi 
cient  supporters  he  had  for  the  presidency.  As  a  public  debater  he  was 


MISCELLANEOUS.  141 

distinguished  almost  exclusively  by  elaborate  efforts  to  propagate  those 
licentious  doctrines  which  have  since  demoralized  the  public  service 
and  put  common  honesty  out  of  countenance. 

One  incident  which  you  mention  is  so  characteristic  of  you  and  him 
both,  that  it  must  be  adverted  to.  In  1848  the  Buffalo  Convention 
nominated  Mr.  Van  Buren  and  you  as  candidates  for  President  and 
Vice-President,  against  General  Taylor,  the  Whig,  and  General  Cass, 
the  Democratic  candidate.  Mr.  Seward  professed  to  believe  most  de 
voutly  in  your  anti-slavery  platform.  Nevertheless  he  voted  and  spoke 
for  General  Taylor,  "  a  planter  holding  many  slaves  in  one  of  the  rich 
est  cotton-producing  States."  You  were  astonished  and  grieved  at 
this  inconsistency,  which  "  seemed  at  first  blush  too  preposterous  to 
be  countenanced  fora  moment."  You  have  puzzled  over  this  mystery 
ever  since,  in  the  belief  that  some  solution  might  be  given  creditable 
to  his  patriotism  and  sincerity  ;  and  your  explanation  is  still  very  far 
from  a  clear  one.  You  do  not  go  the  right  way  about  it.  Your  mis 
take  consists  in  looking  for  the  motives  of  his  conduct  among  those 
high  public  considerations  which  would  have  influenced  your  own  in  a 
similar  situation.  The  riddle  is  easily  read.  You  have  only  to  remem 
ber  that  Whiggery  was  strong  enough  to  make  him  a  Senator  in  Con 
gress,  for  which  he  was  at  that  time  a  candidate,  while  you  could  do 
nothing  for  his  personal  interest.  "Would  he  go  out  empty-handed 
from  a  party  which  was  able  and  willing  to  give  him  his  "  back  pay," 
for  the  sake  of  uniting  his  fortunes  with  a  forlorn  organization  like 
yours?  Would  he  "leave  that  mountain  to  batten  on  this  moor"? 
Was  it  not  "  preposterous  "  in  you  to  expect  such  a  sacrifice  ?  You 
thought,  like  Othello,  that  he  "should  be  honest"  ;  he  believed,  with 
lago,  that  he 

"  Should  be  wise,  for  honesty's  a  fool, 
That  knows  not  what  it  works  for." 

It  is  now  more  than  time  that  we  turn  to  his  achievements  in  the 
field  of  national  politics,  and  especially  to  his  dealings  with  the  South 
ern  States  on  the  slavery  question.  Thanks  to  your  researches  and 
your  candid  account  of  the  result,  we  are  at  no  loss  to  understand  the 
character  of  these  measures  or  the  animus  with  which  he  advocated 
them. 

You  inform  us  that  long  before  he  became  Senator  he  made  a  speech 
at  Auburn  in  which  "the  deliberate  claim  of  a  right  in  the  Federal 
Government  to  emancipate  slaves  by  legislation  was  not  less  remarkable 
than  the  miscalculation  of  the  force  of  the  passions  which  led  the 
South,  in  the  end,  to  the  very  step  that  brought  on  the  predicted  con 
sequences."  The  miscalculation  you  speak  of  was  thus  set  forth  by 
Mr.  Seward  himself  in  the  speech  from  which  you  quote  :  "The  South," 
said  he,  "will  never,  in  a  moment  of  resentment,  expose  themselves 


142  MISCELLANEOUS. 

to  a  war  with  the  North  while  they  have  such  a  great  domestic  popu 
lation  of  slaves  ready  to  embrace  any  opportunity  to  assert  their  free 
dom  and  inflict  their  revenge."  In  other  words,  Federal  legislation  on 
the  domestic  concerns  of  the  Southern  States,  however  unjust  it  might 
seem  to  the  Southern  people,  would  be  quietly  submitted  to  by  them 
for  fear  of  a  Northern  war  accompanied  by  negro  insurrection  and 
massacre.  This  brilliant  and  humane  conception  wins  your  approval, 
and  proves,  in  your  opinion,  that  Mr.  Seward  had  a  special  genius  for 
administering  government  in  a  country  of  laws. 

With  these  views  he  came  into  the  national  councils,  and  macte  it 
known  without  delay  that  the  experiment  was  to  be  tried  incontinent 
ly.  At  the  very  outset  of  his  career  in  Congress  he  began  to  press  the 
bloody  cup  to  the  lips  of  the  South.  As  soon  as  he  had  a  voice  in  the 
Federal  legislature  he  announced  that  emancipation  was  near  and  in 
evitable.  It  might  be  peaceable  or  violent,  and  every  effort  to  hinder 
or  delay  it  ' ( would  tend  to  the  consummation  of  violence."  He  would 
hear  of  no  compromise  and  offer  no  terms  to  the  South.  For  them 
there  was  but  one  alternative  :  submission  or  death.  This  mode  of 
beginning  his  senatorial  duties,  persistently  followed  up,  made  him 
your  beau-ideal  of  a  great  statesman  :  far  superior  to  Clay  and  Cal- 
houn,  who  "  equally  relucted  "  at  his  policy  ;  and  towering  high  above 
Webster,  who  "  never  could  make  up  his  mind  to  meet  it  fully  in  the 
face,"  because  he  saw  there  the  Union  broken  into  dishonored  frag 
ments  and  the  country  drenched  with  fraternal  gore. 

By  many  persons  who  knew  him  well,  these  ferocious  demonstra 
tions  of  hostility  to  the  public  peace,  the  Union,  and  the  Constitution, 
were  regarded  as  the  claptrap  of  a  mere  demagogue  ;  shams  intended 
to  cajole  the  ultra-abolitionists,  and  flatter  their  cruel  rapacity  with 
hopes  of  blood  and  plunder  which  would  never  be  gratified.  Those 
who  held  this  opinion,  while  they  did  not  think  him  a  dangerous  man, 
had  a  most  unspeakable  contempt  and  detestation  for  his  character. 
But  others  took  him  in  a  more  serious  way.  Southern  men  espe 
cially  believed  it  unsafe  to  despise  his  threats  of  pain  and  ruin.  They 
watched  his  gathering  strength  with  dread  and  terror,  and,  when  his 
fortunes  culminated  in  the  possession  of  supreme  authority,  they  felt 
that  their  hour  had  come. 

You  found  it  easy  enough  to  say  that  he  was  the  greatest  of  Ameri 
can  statesmen,  and  that  he  proved  it  by  proposing  such  legislation  as 
this.  But  consider  a  moment  whether  it  was  consistent  with  any  true 
idea  of  wisdom  or  justice. 

You  will  concede  the  simple  point  that  Congress  had  no  jurisdic 
tion  over  the  subject  of  slavery  in  the  States.  What  he  contemplated 
and  desired  and  worked  to  accomplish  could  not  be  done  without  a 
fraudulent  breach  of  the  trust  on  which  he  and  all  others  held  and  ex 
ercised  the  powers  of  the  Federal  Government.  The  practicability  of 


MISCELLANEOUS.  143 

carrying  out  the  usurpation  was  based  on  the  assumption  that  the 
Southern  people  would  choke  down  their  resentment  and  submit  tamely 
to  be  stripped  of  their  constitutional  rights  ;  and  this  you  admit  to 
have  been  a  miscalculation  of  the  passions  which  would  be  roused  by 
the  attempt.  It  follows  that  Mr.  Seward's  political  chef  d'ceuvre  con 
sisted  merely  of  a  fraud  and  a  blunder  compounded  together.  Have 
you  not  proved  your  great  statesman  to  be  alike  destitute  of  principle 
and  prudence  ? 

He  pleaded  "the  salutary  instructions  of  economy  and  the  ripening 
influences  of  humanity"  in  favor  of  his  measures.  These  "instruc 
tions"  and  "influences"  have  probably  made  so  deep  an  impression 
on  your  susceptible  heart,  that  you  are  willing  to  condone  both  the 
fraud  and  the  blunder  for  their  sake.  You  will  not  assert  the  infa 
mous  maxim  that  the  end  justifies  the  means  ;  but  you  have  made  up 
your  mind  that  Mr.  Seward's  object  in  legislating  on  the  internal 
affairs  of  the  South  was,  in  itself,  so  beneficent  as  to  make  a  breach 
of  his  fidelity  to  the  Constitution  a  venial  sin  if  not  a  virtue.  And 
you  think  the  passions  of  the  South  were  so  monstrous  and  unnatural, 
that  to  miscalculate  and  ignore  them  was  not  a  very  bad  mistake,  after 
all. 

But  look  a  little  further.  The  Southern  people  sprang  from  a  race 
accustomed  for  two  thousand  years  to  dominate  over  all  other  races 
with  which  it  came  in  contact.  They  supposed  themselves  greatly 
superior  to  negroes.  Most  of  them  sincerely  believed  that,  if  they 
and  the  Africans  must  live  together,  the  best  and  safest  relation  for 
both  that  could  be  established  between  them  was  that  of  master 
and  servant.  They  thought  it  could  not  be  abolished  without  a 
revolution  disastrous  to  their  material  prosperity  and  fatal  to  their 
social  organization.  They  did  not  think  it  sinful.  The  Bible  fur 
nished  evidence  satisfactory  to  them  that  God  himself  had  framed 
a  constitution  and  laws  for  his  chosen  people,  which  made  Israel 
a  pro-slavery  commonwealth  as  much  as  Virginia  or  South  Carolina. 
Their  religious  teachers  had  told  them  for  many  centuries  that  the 
canons  of  the  Christian  Church  did  not  oppose  it,  but  would  hold 
them  morally  responsible  only  for  the  abuse  of  the  power  it  gave  them. 
They  knew  that  the  fathers  of  the  republic,  and  other  men,  the  best 
and  greatest  of  all  the  ages,  had  lived  according  to  this  faith  and  taken 
it  with  them  "  through  the  valley  of  the.  shadow  of  death."  Some  of 
them  believed  it  a  dangerous  evil,  but  did  not  see  how  to  get  rid  of  it. 
This  last  class  were  especially  resentful  of  outside  interference.  They 
felt,  as  Jefferson  did,  that  they  "  had  the  wolf  by  the  ears  "  ;  they 
could  neither  hold  on  with  comfort  nor  let  go  with  safety  ;  and  it 
made  them  extremely  indignant  to  be  goaded  in  the  rear.  In  all  that 
country,  from  the  Potomac  to  the  Gulf,  there  was  probably  not  one 
man  who  felt  convinced  that  this  difficult  subject  should  be  deter- 


144  MISCELLANEOUS. 

mined  for  them  by  strangers  and  enemies.  Seeing  that  we  in  the 
North  had  held  fast  to  every  pound  of  human  flesh  we  owned,  and 
either  worked  it  to  death  or  sold  it  for  a  price,  our  provision  for  the 
freedom  of  unborn  negroes  did  not  tend  much  to  their  edification. 
They  had  no  confidence  in  that  "  ripening  influence  of  humanity," 
which  turned  up  the  whites  of  its  eyes  in  horror  at  the  sight  of  a 
negro  compelled  to  hoe  corn  or  pick  cotton,  and  yet  gloated  over  the 
prospect  of  insurrection  and  massacre.  They  were  nearly  unanimous 
in  the  opinion  that  this  Yankee  intrusion  into  their  affairs  was 
prompted  by  rancorous  hatred  of  the  white  people,  or  that  it  pro 
ceeded,  at  best,  from  that  monkey-like  spirit  of  mischief  which  is 
never  content  without  thrusting  its  unwelcome  nose  into  somebody's 
kitchen  or  somebody's  church.  They  had  a  tradition  among  them 
that  it  was  not  their  fathers  who  brought  the  Africans  to  this  country. 
They  charged  the  cruelties  of  the  slave-trade  and  the  horrors  of  the 
middle  passage  upon  the  English  and  the  Yankees ;  the  planters 
merely  received  the  savage  negroes,  tamed  and  domesticated  them, 
taught  them  to  work,  converted  them  to  Christianity,  organized  them 
into  churches,  and  generally  did  more  to  improve  their  condition, 
materially  and  spiritually,  than  all  the  missionary  societies  that  ever 
existed.  Moreover,  they  had  a  suspicion  that  if  they  gave  up  their 
right  of  self-government  on  this  subject,  all  their  other  rights  would 
be  taken  away  ;  once  placed  without  the  pale  of  constitutional  pro 
tection,  their  Northern  enemies  would  cut  them  up  root  and  branch. 

Of  course,  I  admit  that  in  all  this  the  Southern  people  were 
blindly  wrong.  They  should  have  understood  their  Bibles  differently. 
They  ought  to  have  known  that  the  negro  was  at  least  their  equal,  if 
not  their  superior.  They  were  besotted  not  to  see  that  Northern  abo 
litionists  were  the  "wisest,  virtuousest,  discreetest,  best"  of  human 
beings,  whose  tender  hearts  were  always  overflowing  with  pure  benevo 
lence,  and  who  wished  to  control  the  local  governments  and  domestic 
business  of  the  South,  not  for  their  own  profit  or  pleasure,  but  solely 
in  the  interests  of  God  and  morality.  If  they  had  seen  things,  as  you 
see  them,  in  this  true  light,  they  would  have  surrendered  their  right 
of  self-government  upon  the  first  summons.  But  they  could  not  so  un 
derstand  the  business.  It  was  with  them  simply  non  possumus.  The 
faith  of  a  people,  delivered  and  kept  from  generation  to  generation 
for  thousands  of  years,  can  not  be  changed  in  a  moment.  Independ 
ence,  bravely  won  and  long  established,  is  not  often  given  up  with 
out  a  struggle.  Burke,  speaking  of  these  same  communities,  warned 
the  British  Parliament  that  slaveholders  were,  by  their  very  habits  of 
masterdom,  made  more  vigilant,  jealous,  and  hardy  than  other  men 
in  the  defense  of  their  own  liberties.  Everything  was  unpropitious  to 
the  spread  of  your  doctrines  among  them.  There  was  not  a  popula 
tion  on  the  habitable  globe  less  prepared  than  they  were  to  appreciate 


MISCELLANEOUS.  145 

the  duty  of  passive  submission.  You  must  not  judge  them  by  your 
self,  or  apply  to  them  the  lofty  standard  of  your  own  conscience. 
You  contemplated  things  from  a  different  point  of  view,  and  had 
means  denied  to  them  of  understanding  their  religious  and  political 
wants.  Even  yet  they  can  not  see  as  you  do  the  infinite  blessing  they 
enjoy  in  being  subjected  and  abjected  to  Yankee  rule. 

It  has  been  ever  thus.  A  sinful  people  can  never  appreciate  the 
holiness  of  the  strangers  who  kill  and  rob  them  for  their  good. 
Philip  II  and  the  Duke  of  Alva  determined  to  lay  the  Low  Countries 
waste,  and  extinguish  the  heresies  of  the  people  in  their  own  blood. 
This  was  to  save  their  souls.  The  king  expressed  the  object  in  his 
tersest  Latin  :  "  Malo  regnum  vastatum  quam  damnatum."  But  the 
Dutch  "  relucted "  at  this  mode  of  salvation  as  much  as  Clay  and 
Calhoun,  and  the  whole  population  "  in  a  moment  of  resentment" 
determined  to  "die  in  the  last  ditch."  The  righteous  souls  of  the 
English  Puritans  were  vexed  from  day  to  day  that  Catholicism  should 
exist  in  Ireland.  It  was  "  a  relic  of  barbarism  "  ;  it  was  a  "blighting 
curse "  ;  there  was  an  "  irrepressible  conflict "  between  it  and  the 
great  truths  which  Puritanism  had  adopted.  So  the  Puritans,  im 
pelled  like  you  by  disinterested  zeal  in  a  great  cause,  and  not  at  all 
by  avarice  or  hatred,  plundered  the  Irish,  killed  them  by  thousands, 
took  possession  of  their  churches,  banished  their  native  leaders,  and 
set  up  a  government  of  strangers  to  tax,  tithe,  confiscate,  and  impov 
erish  them.  The  Irish  resisted  this — fought  it  for  centuries — and  to 
this  day  they  can  not  understand  the  purity  of  the  Puritans. 

I  admit  that  passions  like  these — so  ineradicable  and  so  deeply 
seated  in  the  nature  of  man — should  not  be  wantonly  provoked.  Cer 
tainly  the  magistrate  or  Senator  who  bases  his  public  policy  on  a  "  mis 
calculation  "  of  them,  is  not  fit  to  bear  the  rule  of  any  country.  The 
miscalculation  of  your  statesman  was  so  gross  and  palpable,  that  it 
excites  our  special  wonder  how  any  man  of  common  understanding 
could  have  made  it.  The  wanton  violation  under  any  circumstances 
of  a  compact  so  sacred  as  that  embodied  in  the  Federal  Constitution 
was  alone  sufficient  to  produce  some  feeling.  To  violate  it  for  the 
purpose  of  breaking  up  important  domestic  relations  in  fifteen  States, 
against  the  will  of  the  States  themselves  and  of  all  their  people,  was  a 
most  aggravating  outrage.  But  to  follow  this  with  a  declaration  that 
it  would  be  enforced  by  a  negro  massacre,  incited  and  led  by  the  au 
thorities  of  the  government  which  the  victims  themselves  had  built  up 
to  protect  them,  was  calculated  to  make  the  coolest  blood  boil  over. 
You  yourself  tell  us  that  the  neighborhood  of  Auburn  was  "  intensely 
and  not  unnaturally  excited  "  by  the  act  of  a  single  negro  in  the  mur 
der  of  a  single  family.  What,  then,  must  have  been  the  natural  in 
dignation  of  Southern  communities  when  they  heard  themselves 
threatened  with  a  general  slaughter  ?  Yet  Mr.  Seward,  in  counting 

10 


146  MISCELLANEOUS. 

the  consequences  of  his  measures,  left  all  these  passions  out  of  his 
calculation.  It  is  hard  to  conceive  how  the  dishonesty  of  breaking  a 
political  trust  could  be  coupled  with  folly  more  extreme. 

Mr.  Seward's  reputation  must  rest  forever  on  the  three  things 
which  made  him  especially  notorious  all  the  world  over.  His  fame, 
so  superior,  in  your  opinion,  to  that  of  the  men  who  framed  our  laws 
and  administered  them  faithfully  for  three  quarters  of  a  century,  was 
not  won  as  they  won  theirs.  He  was  remarkably  defective  in  nearly 
all  the  qualities  which  gave  so  much  grandeur  to  their  characters. 
But  he  was  unquestionably  greater  than  any  or  all  of  them  put  to 
gether  on  "  The  Higher  Law,"  "  The  Irrepressible  Conflict,"  and 
"The  Little  Bell."  Of  these,  you  touch  the  first  in  a  gingerly  way, 
and  avoid  all  mention  of  the  other  two.  If  his  theory  and  practice  on 
these  points  are  indefensible,  you  wronged  your  country  and  yourself 
by  calling  him  a  public  benefactor  and  setting  him  up  as  "  a  light  and 
a  landmark  "  to  guide  his  successors. 

Your  reference  to  the  higher  law  might  be  considered  evasive  if 
it  were  not  yours.  You  will  excuse  me,  I  am  sure,  for  saying  that 
your  attempt  to  explain  it,  and  your  sneer  at  the  opposition  it  met 
with  as  a  mere  "  outcry  "  against  an  "  obvious  truth,"  show  that  you 
understand  nothing  about  it.  I  transcribe  your  words  : 

"  It  was  in  this  speech  also  that  he  enunciated  the  doctrine  of  a 
higher  law  than  the  Constitution,  which  gave  rise  to  an  infinite 
amount  of  outcry  from  even  a  very  respectable  class  of  people,  who 
were  shocked  at  the  license  thought  to  be  implied  by  such  an  appeal. 
But  it  seems  to  me  that  no  truth  is  more  obvious  than  this  :  that  all 
powers  of  government  and  legislation  are  closely  restricted  within  a 
limitation  beyond  which  they  can  not  pass  without  being  stripped  of 
their  force.  This  limitation  may  be  purely  material  or  it  may  be 
moral ;  but,  in  either  case,  its  power  is  similar  if  not  the  same.  It  is 
a  familiar  story  which  is  told  in  the  books  of  Canute,  the  great  Dan 
ish  conqueror  of  Britain,  that  once,  when  his  courtiers  were  vying 
with  each  other  in  magnifying  their  sense  of  his  omnipotence,  he  sim 
ply  ordered  his  chair  to  be  approached  to  the  advancing  tide  of  the 
ocean  and  loudly  commanded  the  waves  to  retire.  .  The  flatterers  un 
derstood  the  hint,  and  were  abashed  by  this  withering  illustration  of 
the  'higher  law. ": 

From  this  it  is  apparent  that  you  suppose  the  assertion  of  the 
Higher  Law  to  have  been  a  mere  warning  against  attempts  of  legislation 
and  government  to  overstep  the  material  or  moral  limitations  which 
would  strip  them  of  their  force.  But  this  is  a  palpable  misconception. 

You  will  surely  admit  that  there  never  was  any  question  nor  any 
argument  pro  or  con  about  the  powers  of  government  and  legislation 
to  work  miracles  on  the  material  creation.  Did  Jlr.  Seward  think  it 
necessary  to  deny  that  an  act  of  Congress  could  make  the  sun  change 
its  appointed  time  for  rising  and  setting,  or  "  bid  the  main  flood  bate 


MISCELLANEOUS.  147 

its  usual  height,"  or  invert  the  force  of  gravitation  so  that  the  rain 
would  fall  upward  and  the  smoke  tumble  down  ?  Never  since  the  be 
ginning  of  the  world  did  such  thoughts  enter  a  sane  mind.  That  the 
courtiers  of  King  Canute  affected  to  believe  in  his  power  to  stop  the 
waves  by  a  royal  order,  and  that  he  proved  the  contrary  by  actually 
trying  the  experiment,  is  a  childish  fable,  never  treated  as  an  historic 
fact,  much  less  as  a  "  withering  illustration,"  by  any  grown  man  ex 
cept  yourself. 

Your  interpretation  of  the  Higher  Law  as  operating  to  fix  moral 
limitations  to  legislative  power  is  equally  inaccurate.  You  say  that 
the  limitation  to  legislation  "may  be  either  purely  material  or  it  may 
be  moral ;  but,  in  either  case,  its  power  [i.  e.,  the  power  of  the  limi 
tation]  is  similar,  if  not  the  same."  Here  you  mean,  if  you  mean 
anything,  that  a  rule  of  civil  conduct,  enacted  and  prescribed  by  the 
supreme  legislative  authority  of  an  established  State,  is  as  powerless 
if  opposed  by  a  moral  objection  as  if  it  were  in  conflict  with  a  mate 
rial  force.  You  think  it  safe  to  affirm  that  the  mere  iniquity  of  a  law 
does,  propria  vigore,  defeat  the  intent  of  a  lawgiver,  in  the  same  way 
that  the  winds  and  tides  are  said  to  have  defeated  Canute's  proclama 
tion  to  the  waves  of  the  Northern  Ocean.  Reason  and  history  both 
contradict  you.  From  the  days  of  Nimrod  to  the  time  of  Grant,  man 
kind  have  been  governed  by  laws  as  bad  as  the  cruel  perversity  of  their 
rulers  could  make  them ;  but,  so  far  from  being  ineffectual,  the 
nations  of  the  earth  have  groaned  under  them  and  struggled  against 
them  in  vain.  Many  recent  enactments  of  Congress  are  open  to  the 
gravest  moral  objections,  but  no  jot  or  tittle  of  them  falls  to  the 
ground  for  that  reason.  The  infamous  combination  of  Yankee  and 
negro  thieves  who  now  have  the  government  of  the  Southern  States  in 
their  hands  are  every  day  using  their  power  to  oppress  and  plunder 
their  subjects  in  ways  which  shock  all  sense  of  justice  ;  but  their  laws 
are  remorselessly  executed  ;  right  is  overborne,  and  wrong  revels  in  its 
insolent  triumph.  Here  in  Pennsylvania  a  similar  class  of  miscreants 
have  for  years  been  preying  like  vultures  on  the  prostrate  body  of  the 
Commonwealth.  It  would  be  a  delightful  discovery  to  find  that  their 
enactments  are  stripped  of  all  force  by  the  self-acting  power  of  the 
moral  limitations  which  they  transgress.  But  we  have  no  hope  of 
such  relief,  or  any  relief  at  all.  Only  the  other  day,  in  a  convention 
to  reform  the  Constitution,  an  effort  was  made  to  provide  for  the 
annulment  of  future  immoral  laws  upon  judicial  proof  of  bribery  and 
fraud  used  to  procure  their  passage.  The  convention  voted  it  down. 
Your  fellow-disciples  of  Mr.  Seward  who  lead  us  here  not  only  deny 
that  there  are  any  moral  limitations  to  the  powers  of  government  and 
legislation,  but  they  believe  that  none  ought  to  be  imposed  even  in 
the  grossest  cases  of  the  worst  laws,  known  to  be  passed  by  the  most 
open,  shameless,  and  impudent  corruption. 


148  MISCELLANEOUS. 

The  Higher  Law  doctrine  is  not  an  assertion  that  the  powers  of 
government  and  legislation  are  subject  to  material  or  moral  limitations, 
or  any  limitations  whatever.  On  the  contrary,  it  spurns  even  the  limi 
tations  of  the  Constitution,  and  asserts  the  right  of  the  ruler  to  pass  all 
boundaries  which  his  physical  force  is  strong  enough  to  throw  down. 

In  words  perfectly  free  from  ambiguity,  and  by  a  long  series  of  pub 
lic  acts  which  admit  of  no  doubtful  construction,  Mr.  Seward  taught 
disobedience  to  the  Constitution  as  a  duty,  and  contempt  for  it  as  a 
patriotic  sentiment.  This  principle  (if  it  be  lawful  to  call  it  a  prin 
ciple)  was  adopted,  avowed,  and  acted  upon  by  his  party  with  almost 
entire  unanimity,  whenever  and  wherever  they  found  their  wishes 
opposed  by  a  constitutional  interdict.  By  him  and  by  them  the  old 
notion  that  the  law  of  the  land  ought  to  be  obeyed  was  scoffed  at; 
and  the  practical  assertion  of  a  legal  right  which  they  desired  to  in 
vade  was,  in  cases  without  number,  punished  as  a  crime.  This  is  the 
Higher  Law  which  you  must  vindicate  if  you  desire  to  prove  Mr.  Sew 
ard  a  statesman. 

He  did  not  propose  to  substitute  another  rule  of  conduct,  derived 
from  higher  authority,  in  place  of  the  system  established  by  our 
fathers.  It  is  not  the  will  of  God  as  revealed  in  his  word  that  was  to 
be  obeyed.  The  Higher  Law,  as  expounded  by  his  school,  is,  theoreti 
cally  and  practically,  above  all  law,  human  or  divine.  It  looks  down 
upon  the  Decalogue  with  as  much  contempt  as  it  does  upon  the  habeas 
corpus  act.  It  has  no  more  respect  for  Moses  than  for  Washington. 
Those  who  received  it  earliest  and  worked  hardest  to  propagate  it  were 
notorious  for  their  ribald  abuse  of  Christianity.  When  they  met  peri 
odically,  at  Framingham  and  elsewhere,  to  proclaim  the  Higher  Law, 
their  invectives  against  the  Constitution  were  accompanied  by  blas 
phemies  against  God  too  shocking  to  be  repeated.  They  had  men 
among  them  who  professed  to  be  Christian  preachers.  How  many 
were  wolves  in  sheep's  clothing,  and  how  many  sheep  in  wolves'  cloth 
ing,  I  know  not ;  but  the  leading  one  said  that  their  object  was  to  be 
accomplished  by  the  ruin  of  the  American  church  as  well  as  the  de 
struction  of  the  Federal  Government.  The  doctrine  was  also  sup 
ported  by  Christian  statesmen  ;  but  you  know,  of  course,  that  recent 
evidence  proves  their  religion  to  have  been  a  mere  disguise.  In  fact, 
the  Higher  Law,  in  its  whole  character,  is  so  directly  in  conflict  with 
every  precept  of  the  Bible,  that  no  man  who  has  the  least  respect  for 
one  can  possibly  believe  in  or  practice  the  other. 

This  Higher  Law,  scouting  the  law  of  God  and  man — what  is  it  ? 
It  is  simply  not  law  at  all,  but  license  to  use  political  power  in  any 
way  that  will  promote  the  interests  or  gratify  the  passions  of  him  who 
wields  it.  It  tells  those  who  administer  the  Government  that  they 
may  do  whatever  they  can  do.  It  abolishes  all  law,  and  puts  in  its 
place  the  mere  force  which  law  was  made  to  control. 


MISCELLANEOUS.  149 

u  Jura  negat  sibi  nata ;  nihil  non  arrogat  armis." 

How  thoroughly  it  disregards  the  rights  of  men,  and  how  exclu 
sively  it  respects  the  mights  of  men,  is  seen  in  the  whole  history  of  its 
administration  by  Mr.  Seward  himself.  His  first  enunciation  of  it 
was  connected  with  his  movement  against  the  South.  That  part  of 
the  Union,  being  encumbered  by  its  negroes  and  afraid  of  them,  was 
too  weak  to  defend  its  constitutional  rights,  and  might,  therefore, 
become  the  prey  of  the  spoiler.  He  never  once  kidnapped  a'  citizen 
until  he  had  the  organized  physical  force  of  the  nation  at  his  back. 
His  victims  were  powerless  men  and  women,  who  had  no  defense  but 
their  innocence.  His  great  diplomatic  achievement  which  you  vaunt 
so  loudly  illustrates  the  rule  clearly.  Mason  and  Slidell  were  captured 
from  a  British  vessel  in  plain  violation  of  public  law.  But  if  there 
was  a  law  higher  than  the  Constitution  and  higher  than  all  laws  of 
God  and  man,  it  must  also  be  higher  than  the  law  of  nations.  Why 
should  not  the  Higher  Law  "  have  free  course  to  run  and  be  glorified  " 
on  sea  as  well  as  on  land  ?  The  President  could  not  see  his  way 
through  these  logical  difficulties,  and  the  Cabinet  was  all  in  a  muddle. 
Mr.  Blair  denounced  the  conduct  of  Wilkes  as  an  indefensible  outrage 
which  would  be  sure  to  make  trouble,  while  Mr.  Seward  was  as  much 
delighted  as  if  one  of  his  deputy  kidnappers  had  broken  the  head  of 
an  honest  judge  or  dragged  an  independent  editor  to  prison.  But  he 
remained  in  this  frame  of  mind  only  as  long  as  he  supposed  that  Eng 
land  could  not  or  would  not  resent  the  injury.  He  understood  his 
own  code  well  enough  to  know  that  it  did  not  apply  to  a  case  in  which 
the  right  was  defended  by  a  force  strong  enough  to  repel  the  wrong. 
When,  therefore,  England  armed  herself  and  uttered  her  stern  demand 
for  immediate  reparation,  his  whole  tone  was  changed.  He  not  only 
backed  squarely  down,  but  he  signalized  the  humiliation  of  the  Higher 
Law  by  long-winded  and  superfluous  praises  of  legal  justice — 

"...  mouth-honor,  breath, 
Which  the  poor  heart  would  fain  deny,  but  dare  not." 

This  feature  of  Higher  Law  was  kept  in  mind  by  the  Administra 
tion  afterward.  When  the  publishers  of  the  Chicago  "  Times  "  showed 
their  pluck  by  resisting  a  tyrannical  order,  and  the  people  rushed  to 
their  rescue,  the  decree  was  revoked.  The  Higher  Law  invades  only 
the  rights  of  the  weak  and  the  defenseless. 

Called  by  other  names,  the  Higher  Law  was  practiced  often  before 
it  was  introduced  here.  Amurath  securing  his  throne  by  killing  all 
his  brothers  and  uncles ;  Herod  slaughtering  the  innocents  ;  Nero 
persecuting  the  Christians  ;  Madame  de  Pompadour  filling  the  Bastile 
with  victims  of  her  petty  spite  ;  Lola  Montez  setting  her  dogs  on  the 
students  at  Munich  for  doubting  the  political  wisdom  of  the  king's 


150  MISCELLANEOUS. 

mistress — all  these  acted  upon  the  same  kind  of  law  that  Mr.  Seward 
declared  to  be  higher  than  the  American  Constitution.  It  reduces 
free  government  to  a  personal  despotism.  The  citizen  who  volun 
tarily  submits  to  it  is  a  slave  in  his  soul. 

It  will  not  do  to  say  that  the  Higher  Law  was  set  up  merely  to 
meet  the  exigencies  of  the  war,  and  had  but  a  temporary  reign.  That 
Mr.  Seward  stabbed  the  Constitution  in  the  back  only  after  secession 
had  struck  it  a  blow  in  the  face,  would  not  be  a  valid  excuse  if  it  were 
true,  nor  a  true  one  if  it  were  valid.  In  point  of  fact,  the  Higher  Law 
was  proclaimed,  urged,  and  advocated  by  him  and  by  others  as  early 
as  1850,  at  a  time  of  profound  peace,  and  without  reference  to  wars  or 
rumors  of  wars.  Its  worst  acts  were  done  before  the  war,  after  the 
war,  and  at  places  where  war  never  existed.  In  1867,  two  years  after 
the  peace,  it  embodied  itself  in  the  "reconstruction  laws,"  which  did 
not  leave  one  single  provision  of  the  Constitution  unviolated.  At 
the  present  moment  it  is  adhered  to  with  as  much  tenacity  as  ever. 
Do  you  know  any  member  of  the  dominant  party  who  abjures  it,  or 
professes  to  have  been  converted  to  the  doctrine  of  legal  obedience  ? 
Have  you  the  least  reason  to  doubt  that  the  abolitionists  would  to 
morrow  unite  in  a  compact  body  to  trample  down  the  plainest  consti 
tutional  rights  of  their  opponents,  North  or  South,  if  that  were  neces 
sary  to  win  supreme  power,  to  retain  possession  of  it,  or  to  quell  a 
dangerous  opposition  ?  They  may  act  within  the  forms  of  law  for 
their  own  convenience  and  safety  ;  but  where  law  that  can  be  over 
borne  stands  in  their  way,  what  reason  is  there  to  believe  that  they 
will  respect  it  ?  Let  me  tell  you  a  fact.  In  1865,  months  after  the 
peace,  at  the  political  metropolis  of  the  nation,  in  full  sight  of  the 
Executive  Mansion,  the  Capitol,  and  the  City  Hall,  where  the  courts 
were  in  session,  a  perfectly  innocent  and  most  respectable  woman  was 
lawlessly  dragged  away  from  her  family  and  brutally  put  to  death, 
without  judge  or  jury,  upon  the  mere  order  of  certain  military  officers 
convoked  for  that  purpose.  It  was,  take  it  for  all  in  all,  as  foul  a  mur 
der  as  ever  blackened  the  face  of  God's  sky.  But  it  was  done  in  strict 
accordance  with  Higher  Law,  and  the  Law  Department  of  the  United 
States  approved  it.  Now,  mark  you  :  within  less  than  three  months 
last  past  the  present  Attorney-General  officially  referred  to  this  as  a 
precedent  entirely  fit  to  be  followed.  This  may  not  be  very  impor 
tant  in  itself,  but  it  is  significant  as  showing  that  the  reign  of  Higher 
Law  is  not  over  yet.  Can  you  promise  that  it  ever  will  be  ?  Is  there 
not  reason  to  fear  that  this  doctrine  has  poisoned  all  the  streams  of 
justice  ? 

In  every  institutional  government,  whether  it  be  a  republic  or  a 
limited  monarchy,  the  delegation  of  its  powers  is  coupled  with  an  ex 
press  condition  that  they  shall  be  exercised  only  in  a  prescribed  way, 
and  within  certain  defined  limits.  The  violation  of  this  condition, 


MISCELLANEOUS.  151 

under  any  pretense  whatsoever,  has  always,  everywhere,  and  by  all 
tolerably  honest  men,  been  regarded  as  a  base  and  treacherous  breach 
of  the  most  sacred  trust  that  can  be  confided  to  human  hands.  Among 
us  no  man  can  get  possession  of  any  official  authority  without  first 
making  a  solemn  covenant  with  God  and  his  country  that  he  will  be 
faithful  to  the  fundamental  law,  and  he  must  seal  that  covenant  with 
an  oath.  Can  anything  be  more  damning  than  the  doctrine  which 
teaches  men  to  seek  office  and  take  this  oath  with  a  predetermination 
to  break  it  ?  Is  any  species  of  willful,  deliberate,  and  corrupt  perjury 
at  once  so  debasing  and  so  mischievous  ? 

Yet  the  author  and  finisher  of  this  atrocious  faith  is  your  model 
of  a  statesman.  You  find  your  highest  standard  of  political  ortho 
doxy  in  his  precept  and  his  example.  The  men  who  made  the  Con 
stitution  and  took  it  as  a  lamp  to  their  feet  and  a  guide  to  their  path 
command  none  of  your  respect.  Jefferson,  the  great  apostle  of  lib 
erty  secured  and  regulated  by  law,  is  summarily  set  aside,  and  his 
"  modern  disciples  "  who  have  kept  their  oaths  are  "  cast  into  deep 
shadow  "  by  the  founder  of  an  opposing  school  which  makes  systematic 
perjury  the  corner-stone  of  its  policy.  The  expression  of  such  senti 
ments  by  a  man  like  you  is  a  deep  injury  to  the  cause  of  liberty  and  justice. 

You  know  what  the  Irrepressible  Conflict  was  as  Mr.  Seward  ut 
tered  it  at  Kochester.  I  present  an  analysis  which  you  will  admit  to 
be  accurate.  He  announced  that — 

1.  There  was  then  a  conflict  between  the  North  and  the  South — 
not  merely  a  conflict  of  interests,  opinions,  and  feelings  to  be  deter 
mined  peaceably  by  reason  or  law  ;  but — 

2.  It  was  a  conflict  between  the  opposing  forces  of  the  Northern 
and  Southern  States.     Actual  war  already  existed  ;  the  relation  of  the 
parties  was  that  of  belligerent  enemies. 

3.  The  determined  purpose  of  this  war,  on  one  side,  was  to  plant 
slavery  in  the  North  by  force,  and,  on  the  other,  to  abolish  it  in  the 
South  by  similar  means.     This,  of  course,  involved  the  complete  sub 
jugation  of  the  defeated  party. 

4.  The  conflict  was  irrepressible.    The  dogs  of  war  were  loose,  and 
could  not  be  chained  up  again. 

5.  The  conflict  should  not  be  stopped  ;  it  must  go  on  until  all  the 
rights  of  one  section  should  be  trampled  down  under  the  hostile  feet 
of  the  other.     Woe  to  the  conquered  ! 

You  are,  of  course,  aware  that  this  was  a  mere  invention.  There 
was  no  such  conflict  as  he  described.  The  wish  of  himself  and  his 
party  friends  to  visit  the  South  with  fire,  sword,  and  famine  may  have 
been  very  strong,  but  the  declaration  that  the  Southern  States  were 
using  their  forces,  or  intended  to  use  them,  for  the  purpose  of  intro 
ducing  African  slavery  into  the  North,  was  such  an  offense  against 
the  known  truth  as  admits  of  no  palliation  or  excuse. 


152  MISCELLANEOUS. 

Yet  it  was  believed  and  taken  into  the  hearts  of  thousands  and 
tens  of  thousands.  Large  bodies  of  men  combined  together  in  sects 
or  parties  are  often  excited  to  a  kind  of  madness.  In  that  condition 
their  appetite  for  falsehood  is  unappeasable,  and  the  gluttony  with 
which  they  swallow  it  down  is  incalculable.  One  half  the  English 
people  believed  the  transparent  lies  of  Titus  Gates  about  the  "Popish 
Plot/'  and  the  other  half  did  not  dare  to  contradict  it.  "  Know- 
Nothings  "  without  number  believed  the  frightful  stories  of  Maria 
Monk  and  her  coadjutors.  And  the  abolitionists  believed  Mr.  Seward. 
He  understood  them,  and  had  taken  the  exact  measure  of  their  cre 
dulity.  This  time  he  made  no  "miscalculation  of  the  passions"  he 
would  stir.  Believing  him,  they  saw  in  the  South  a  cruel  enemy  pre 
paring  to  crush  out  their  domestic  institutions,  to  subvert  their  State 
governments,  and  to  smash  up  the  whole  framework  of  their  society. 

On  the  minds  of  the  Southern  people  the  effect  was  still  worse. 
To  my  certain  knowledge  it  made  more  secessionists  than  all  other 
causes  put  together.  To  every  persuasion  we  addressed  them  in  favor 
of  legal  obedience,  union,  and  peace,  Seward's  speech  furnished  an 
answer.  How  was  it  possible,  they  said,  for  them  to  obey  a  Constitu 
tion  which  we  treated  as  a  dead  letter  ?  Could  one  party  keep  a  com 
pact  if  the  other  wantonly  broke  it  ?  "  The  Union  !  a  conflict  is  not 
union  ;  and,  as  to  peace,  your  foremost  man  has  told  us  that  there  is 
no  peace."  The  terrible  difficulties  of  their  situation  paralyzed  their 
judgment.  Exasperation  took  the  place  of  that  cool  fortitude  which 
had  carried  them  through  previous  trials.  Wisdom  forsook  their  coun 
sels.  They  gave  up  to  their  domestic  foes  the  ship  which  they  had 
often  defended  against  foreign  enemies,  and  trusted  their  destiny  to 
secession — 

"...  that  fatal,  that  perfidious  bark, 
Built  in  the  eclipse  and  rigged  with  curses  dark." 

Did  Mr.  Seward  know  what  he  was  doing  when  he  started  this 
Irrepressible  Conflict  ?  If  he  did  not,  how  can  you  feel  any  respect  for 
his  judgment  ?  But  his  newspaper  organ  at  Albany  (the  "  Evening 
Journal ")  said  for  him  that  he  did  intend  what  happened  ;  and  he 
himself,  about  1865,  bragged  that  he  had  privately  predicted  the  bat 
tle  of  Gettysburg  many  years  before  the  war  broke  out.  The  "  Irre 
pressible  Conflict "  was,  then,  on  his  part,  a  cold-blooded  and  delib 
erate  preparation  for  the  sacrifice  of  life  and  property  on  a  scale  of 
enormous  magnitude,  involving  men,  women,  and  children  of  every 
class  and  color  in  the  North  as  well  as  the  South.  You  think  him 
wholly  unlike  Cleon,  as  being  vastly  better.  But  what  did  that  un 
principled  tanner  ever  do,  or  propose  to  do,  that  was  comparable  to 
the  atrocity  of  the  Irrepressible  Conflict  ?  You  will  say,  as  you  have 
said,  that  Cleon  "  stimulated  the  passions  of  the  Athenians  to  the 


MISCELLANEOUS.  153 

massacre  of  the  male  population  of  Mitylene."  But,  remember,  there 
were  only  about  five  thousand  male  Mitylenasans  all  told  (less  than  two 
thousand  actually  suffered),  and  they  were  foreigners  and  enemies. 
On  the  other  hand,  that  population  which  Mr.  Seward  "stimulated 
the  passions  "  of  the  abolitionists  and  negroes  to  massacre  were  his 
fellow-citizens,  living  with  him  in  the  bonds  of  sworn  amity,  under  a 
common  Government,  which  owed  equal  protection  to  them  and  him 
self.  Perhaps  you  will  plead  for  Seward  that  the  Southern,  people 
were  slaveholders  and  "  poor  white  trash  "  whom  it  was  no  harm  to 
kill ;  but  I  reply,  on  the  part  of  Cleon,  that  the  Mitylenaeans  were 
slaveholders  also.  Your  contrast  between  Seward  and  Cleon  is  almost 
as  much  a  failure  as  your  analogy  between  him  and  Pericles. 

Before  you  asserted  that  Mr.  Seward  saved  the  country,  you  ought 
to  have  remembered  that,  if  the  nation  had  been  saved  from  him  and 
his  followers,  and  the  Irrepressible  Conflict  which  they  created,  it 
would  have  needed  no  other  salvation. 

Now  as  to  the  Little  Bell.  The  same  Higher  Law  which  gave  the 
Federal  Government  power  to  legislate  against  the  States  in  defiance 
of  the  Constitution  would  logically  justify  any  executive  outrage  that 
might  be  desired  for  personal  or  party  purposes  on  the  life,  liberty,  and 
property  of  individuals.  Such  was  Mr.  Seward's  theory,  and  such  was 
the  practice  of  himself  and  his  subordinates  and  some  of  his  colleagues. 
I  will  not  pain  you  by  a  recital  of  the  wanton  cruelties  they  inflicted 
upon  unoffending  citizens.  I  have  neither  space  nor  time  nor  skill  to 
paint  them.  A  life-size  picture  of  them  would  cover  more  canvas 
than  there  is  on  the  earth.  You  were  abroad  as  Minister  to  England 
when  most  of  them  were  done  ;  but  every  wind  bore  you  the  reports, 
and  you  must  have  blushed  for  your  country  when  you  saw  her  de 
graded  in  the  eyes  of  the  whole  world.  Since  the  fall  of  Robespierre 
nothing  has  occurred  to  cast  so  much  disrepute  on  republican  insti 
tutions. 

"When  Mr.  Seward  went  into  the  State  Department  he  took  a  Little 
Bell  to  his  office  in  place  of  the  statute-book,  and  this  piece  of  sound 
ing  brass  came  to  be  a  symbol  of  the  Higher  Law.  When  he  desired 
to  kidnap  a  free  citizen,  to  banish  him,  to  despoil  him  of  his  property, 
or  to  kill  him  after  the  mockery  of  a  military  trial,  he  rang  his  Little 
Bell,  and  the  deed  was  done. 

This  man,  to  whom  you  would  assign  a  place  in  history  above  all 
other  American  statesmen,  took  a  childish  delight  in  the  perverted 
use  of  his  power,  and  displayed  it  as  ostentatiously  as  one  of  those 
half-witted  boys  who  were  sometimes  raised  to  the  purple  in  the  evil 
days  of  the  Roman  Empire.  He  boasted  of  it  on  many  occasions,  and 
crowed  over  the  British  Minister,  telling  him  that  his  Queen  could 
not  do  so  much.  Lord  Lyons  was  dumb.  Victoria  had  no  Little 
Bell  of  that  kind  ;  she  swore  at  her  coronation  to  govern  according  to 


154:  MISCELLANEOUS. 

the  laws  of  the  realm,  and  she  must  keep  her  oath.  For  more  than 
two  centuries  no  English  monarch  had  tried  the  experiment  of  Higher 
Law  on  his  people.  Under  Charles  I,  Straff ord  declared  that  "  the 
King's  little  finger  was  thicker  than  the  loins  of  the  law  " ;  but  he 
was  tried  for  this  and  put  to  death  as  a  traitor.  For,  acting  upon 
Strafford's  suggestion,  the  people  rose  upon  the  King  himself,  dragged 
him  to  the  block,  and  chopped  his  head  off  ;  and  the  God  of  justice 
looked  down  from  his  great  white  throne  in  the  heavens  and  smiled 
upon  the  deed. 

You  may  answer  (as  the  disciples  of  your  school  generally  do)  that 
the  men  and  women  who  have  suffered  under  this  tyrannous  rule  were 
mere  Democrats,  Copperheads,  Union  -  savers,  Doughfaces,  Southern 
sympathizers,  Bourbons  who  forget  nothing  and  learn  nothing,  enter 
taining  opinions  out  of  date  and  unfavorable  to  abolitionists,  danger 
ous  voters,  improper  persons,  whom  it  was  decidedly  advisable  to  take 
off  ;  and,  as  that  could  not  be  done  according  to  law,  it  was  right  to 
do  it  against  law.  I  will  not  affirm  that  the  Democracy  had  any  mer 
its,  but  ask  you  merely  to  recollect  that  a  legal  right  is  always  respect 
able,  even  though  the  person  who  claims  it  does  not  stand  high  in  your 
esteem.  Besides,  it  was  not  expected  that  the  party  in  power  would 
oppress  themselves.  The  law  is,  therefore,  made  to  no  purpose  at  all 
if  it  does  not  shield  the  weakness  of  their  opponents.  You  can  not 
understand  the  value  of  a  free  constitution  unless  you  imagine  your 
self  in  the  situation  of  a  minority,  under  the  Higher  Law  rule.  Then 
you  will  see  the  other  side  of  the  question.  To  deprive  Democrats  of 
their  hereditary  rights  and  pen  them  up  in  dungeons  by  the  thousand 
without  jury-trial  or  habeas  corpus  may  be  no  more  than  a  fair  con 
cession  to  the  "ripening  influence  of  humanity,"  and  to  rob  them  is 
according  to  the  "  salutary  instructions  of  economy"  ;  therefore,  these 
are  pleasant  employments  for  abolitionists.  But  there  is  a  differ 
ence  between  doing  and  suffering.  How  would  you  like  it  yourself  to 
be  throttled  by  the  minions  of  the  Higher  Law  ?  If  you  had  been 
kidnapped  and  imprisoned  or  beaten  and  robbed  by  the  hirelings  of 
executive  malice,  or  insulted  by  a  mock  trial  before  a  body  of  pliant 
tools  "  organized  to  convict,"  perhaps  you  might  have  learned  to  value 
the  Constitution  as  highly  as  it  is  valued  by  the  worst  of  the  Copper 
heads.  You  would  understand  then  how  the  Bill  of  Rights  has  come 
to  be  regarded  as  the  gospel  of  the  weak.  It  is  even  possible  that  you 
could  in  that  case  appreciate  the  admiration  which  Pitt  expressed  for 
Magna  CJiarta  when  he  said  that  three  words  of  that  bad  Latin  were 
worth  more  than  all  the  classics.  As  it  is,  you  have  no  special  cause  to 
dislike  arbitrary  power,  and  you  can  afford  to  admire  the  man  who 
threw  down  the  defenses  of  personal  liberty.  But  you  must  not  expect 
to  be  joined  in  this  by  that  portion  of  the  people  who  need  the  protec 
tion  of  a  free  government. 


MISCELLANEOUS.  155 

Mr.  Welles  presents  the  subject  of  your  eulogy  in  a  very  unpleasant 
light.  Instead  of  the  sagacity,  candor,  and  patriotism  for  which  you 
credit  him,  he  was  cunning  and  treacherous,  "  to  low  ends  industri 
ous,"  and  crooked  in  all  his  ways.  I  am  no  voucher  for  this ;  but 
besides  Mr.  Welles's  own  unquestioned  veracity,  and  the  circumstantial 
corroboration  of  his  statements,  there  is  a  reason  a  priori  for  believing 
all  he  says,  and  more  too  ;  the  man  who  was  notoriously  false  to  the 
Constitution  he  swore  to  support,  could  not  be  true  to  anything. 

By  Mr.  Welles's  paper  it  is  distinctly  made  known  that  Mr.  Seward, 
as  soon  as  he  came  into  office,  concocted  a  scheme  for  the  surrender  of 
Fort  Sumter  into  the  hands  of  the  secessionists  ;  that  he  drew  General 
Scott  into  it,  and  tried  to  get  the  President's  assent  also  ;  that  the  Presi 
dent  having  declined  to  surrender,  and  determined  to  re-enforce  the 
place,  a  confidential  friend  and  protege  of  Mr.  Seward  notified  his 
confederates  in  the  South  of  the  movement  about  to  be  made  ;  that 
the  whole  plan  and  arrangement  of  the  Administration  for  the  relief 
of  the  fort  was  brought  to  nothing  by  a  series  of  secret,  deceptive,  and 
underhand  manoeuvres  which  Mr.  Seward  carried  on  without  the 
knowledge  of  the  War  or  Navy  Department ;  and  that,  while  he  was 
thus  betraying  his  own  associates,  he  wrote  to  secessionists  that  his 
faith  pledged  to  them  would  be  fully  kept.  These  accusations  seem 
to  be  proved  by  overwhelming  evidence.  I  do  not  suppose  that  this 
will  shake  your  faith  in  Mr.  Seward's  integrity  and  wisdom,  or  detract 
one  atom  from  your  admiration  for  the  grand  simplicity  of  his  charac 
ter.  But  suppose  such  a  revelation  to  be  made  concerning  a  member 
of  the  Buchanan  Administration,  what  would  you  say  ?  Would  you 
present  him  to  the  country  as  its  best  example  of  a  statesman,  or 
would  you  hang  him  up  for  the  execration  of  the  world  ?  Would  you 
sing  paeans  to  his  virtue,  or  "  cleave  the  general  ear  with  horrid  speech  " 
about  his  wickedness  ? 

You  were  a  member  of  Congress  when  the  election  of  Lincoln  took 
place,  and  your  conduct  between  the  election  and  the  inauguration 
was  supposed  to  justify  the  respect  which  was  felt  for  you  by  all  the 
true  friends  of  the  country.  I  thought  your  speeches  were  the  best 
rebuke  that  could  be  given  to  the  intemperate  malice  of  your  party, 
which  adopted  no  policy  but  that  of  slandering  the  existing  Adminis 
tration.  I  am  sorry  if  I  mistook  you,  and,  if  I  was  right,  I  will  not 
cite  you  against  yourself,  for  the  argumentum  ad  hominem  proves 
nothing.  But  Mr.  Seward's  behavior  during  that  critical  period  was 
not  worthy  of  his  place. 

Your  account  of  his  situation  at  that  time  differs  from  his  own. 
You  say,  in  substance,  that  though  he  ought  to  have  been  early  secured 
in  a  post,  and  other  posts  ought  to  have  been  filled  under  his  advice, 
yet  nothing  was  done  for  him  until  quite  late  in  the  session,  when  his 
friends  were  disposed  to  advise  him  to  reject  the  tardy  offer.  But,  on 


156  MISCELLANEOUS. 

the  contrary,  his  own  written  declaration  is  that  it  ivas  early  under 
stood  that  he  was  to  be  appointed  Secretary  of  State,  and  that  he  was 
regarded  as  representing  not  only  the  incoming  Administration  but 
the  party  by  which  it  was  elected.  It  is  certain  that  his  ego  et  rex 
meus  style  of  speaking  about  himself  and  Mr.  Lincoln  created  a  gen 
eral  belief  at  Washington  that  he  would  be  the  Wolsey  of  the  new 
Administration,  with 

"  Law  in  his  voice  and  honor  in  his  hand  " ; 

while  others  would  be  subordinate,  and  the  President  himself  little 
more  than  a  figure-head.  In  fact,  he  carried  out  this  notion  after  he 
went  into  office,  much  to  the  disgust  of  his  colleagues,  as  you  may 
learn  from  Mr.  Welles  and  Mr.  Blair. 

Holding  a  position  like  this,  a  word  fitly  spoken  by  him  would 
have  saved  the  country  from  a  whole  Iliad  of  woes.  But  he  was  nar 
row-minded,  short-sighted,  and  destitute  of  the  magnanimity  needed 
in  such  a  crisis.  Instead  of  rising  to  the  height  of  the  occasion,  he 
showed  himself  a  mere  politician.  To  tell  what  little  things  he  did 
during  that  memorable  winter  would  require  a  good-sized  volume  ; 
but  there  lives  not  even  in  your  partial  remembrance  one  great  act 
to  mark  him  as  a  patriot  or  statesman. 

Since  you  and  Mr.  Welles  and  Mr.  Blair  have  put  on  record  your 
personal  reminiscences  of  him,  I  will  add  my  contribution,  believing 
that  the  fact  I  am  about  to  mention  throws  a  broader  light  on  his  pub 
lic  character  than  any  which  you  have  given. 

When  the  troubles  were  at  their  worst,  certain  Southern  gentlemen, 
through  Judge  Campbell,  of  the  Supreme  Court,  requested  me  to  meet 
Mr.  Seward  and  see  if  he  would  not  give  them  some  ground  on  which 
they  could  stand  with  safety  inside  of  the  Union.  I  consented,  and 
we  met  at  the  State  Department.  The  conference  was  long  and  ear 
nest.  I  can  not,  within  these  limits,  set  forth  even  the  substance  of  it. 
He  seemed  conscious  of  his  power,  and  willing  to  use  it  in  the  inter 
ests  of  peace  and  union,  as  far  as  he  could  without  the  risk  of  offend 
ing  his  own  party.  What  could  he  do  ?  Many  propositions  were  dis 
cussed,  and  rejected  as  being  either  impracticable  or  likely  to  prove 
useless,  before  I  told  him  what  I  felt  perfectly  sure  would  stop  all  con 
troversy  at  once  and  forever.  I  proposed  that  he  should  simply 
pledge  himself  and  the  incoming  Administration  to  govern  according 
to  the  Constitution,  and  upon  every  disputed  point  of  constitutional 
law  to  accept  that  exposition  of  it  which  had  been  or  might  be  given  by 
the  judicial  authorities.  He  started  at  this,  became  excited,  and  vio 
lently  declared  he  would  do  no  such  thing.  "  That,"  said  he,  "  is 
treason  ;  that  would  make  me  agree  to  the  Dred  Scott  case."  In 
vain  I  told  him  that  he  was  not  required  to  admit  the  correctness  of 
any  particular  case,  but  merely  to  submit  to  it  as  the  decision  of  the 


MISCELLANEOUS.  157 

highest  tribunal,  from  which  there  could  be  no  appeal  except  to  the 
sword. 

You  will  see  that  if  such  a  pledge  as  this  had  been  given  and  kept, 
the  war  could  not  have  taken  place  ;  it  would  have  left  nothing  to 
fight  about ;  and  the  decent  men  of  the  Anti-slavery  party  would 
have  lost  nothing  by  it  which  they  pretended  to  want,  for  even  the 
Dred  Scott  case  had  inured  to  their  practical  benefit.  But  Mr.  Sew- 
ard  must  have  given  up  the  Higher  Law  and  denied  himself  the  pleas 
ure  of  kidnapping  Democrats. 

I  had  never  before  heard  that  treason  was  obedience  to  the  Consti 
tution  as  construed  by  the  courts  ;  but  this  prepared  me  to  learn,  as  I 
did  some  time  afterward,  that  the  correlative  virtue  of  loyalty  con 
sisted  in  trampling  the  laws  under  foot.  What  should  the  world 
think  of  the  statesmanship  which  introduced  these  notions  ? 

I  do  not  know,  but  I  believe,  that  Mr.  Seward,  in  consequence  of 
the  conversation  above  mentioned,  got  Mr.  Lincoln  to  commit  him 
self  in  the  inaugural  by  the  absurd  and  mischievous  declaration  that 
he  would  not  take  his  law  from  the  Supreme  Court,  but  would  take  it 
from  the  Chicago  Convention. 

Your  address  has  undoubtedly  done  much  to  diminish  what  little 
confidence  was  left  in  the  Government  as  a  protection  to  our  personal 
rights.  We  can  not  help  but  feel  that  the  security  of  life,  liberty,  and 
property  must  be  fearfully  slender  in  a  country  where  a  citizen  of 
your  standing  can  openly  say  that  the  owner  and  tinkler  of  the  Little 
Bell  was  a  statesman  whose  example  ought  to  be  universally  copied. 

You  are  a  leader  of  the  party  calling  itself  "Liberal  Kepubli- 
can,"  whose  platform  is  a  protest  against  iniquity  in  high  places,  and 
whose  movements  are  a  struggle  for  the  restoration  of  honest  govern 
ment.  Your  compatriots  know,  if  you  do  not,  that  the  evils  they  de 
plore  were  introduced  by  the  man  you  advise  them  to  imitate.  The 
party  you  oppose  for  its  hideous  corruption  has  but  fashioned  its 
moral  and  political  principles  upon  the  model  which  you  now  declare 
to  be  full  of  beauty  and  goodness.  Your  personal  consistency  is  noth 
ing  ;  but  to  go  back  in  this  way,  not  only  on  yourself,  but  on  your 
friends  and  your  country,  is  too  bad. 

J.  S.  BLACK. 


158  MISCELLANEOUS. 


SPEECH  AT  THE  CELEBRATION  OF  THE  CENTENARY 
OF  GRATTAN'S  DECLARATION  OF  IRISH  INDEPEND 
ENCE,  UNDER  THE  AUSPICES  OF  THE  IRISH  NA 
TIONAL  LAND  LEAGUE,  OF  MARYLAND,  AT  CON- 
CORDIA  OPERA-HOUSE,  BALTIMORE,  APRIL  18,  1882. 

HE  began  by  referring  to  some  remarks  of  the  mayor,  and  said  lie 
would  not  bandy  compliments  with  him.  Except  for  the  fear  of  seem 
ing  to  do  so,  he  would  then  and  there  express  his  admiration  of  that 
gentleman's  high  career  as  Governor  of  the  State  and  Senator  in  Con 
gress,  with  some  reference  to  the  perfections  of  his  administration  as 
chief  magistrate  of  the  city. 

My  task  (said  Judge  Black)  is  simpler  than  that  which  the  mayor 
has  performed  so  excellently  well.  It  will  consist  in  making  as  plain 
as  possible  the  issues  between  the  enemies  of  honest  government  and 
its  friends  here  as  well  as  on  the  other  side  of  the  water. 

Are  we,  or  not,  required  to  do  something  for  the  relief  of  Ire 
land  ?  This  is  a  question  on  which,  I  think,  no  American  citizen  has 
a  right  to  be  silent.  Therefore,  and  not  because  I  would  set  myself 
up  as  a  public  instructor,  I  am  where  I  am  to-night.  For  seven  cent 
uries  Ireland  has  worn  the  yoke  of  political  bondage.  During  all  that 
time,  except  one  short  interval,  she  has  not  been  permitted  to  make 
any  laws  for  the  protection  of  her  own  people  in  their  persons  or  prop 
erty.  What  they  call  home-rule,  or  the  privilege  of  local  self-govern 
ment,  is  wholly  denied  them.  Their  affairs  are  entirely  directed  by 
another  power,  whose  orders  are  executed  by  agents  and  overseers  sent 
upon  them  for  that  purpose.  Such  a  government  is  sure  to  be  admin 
istered  without  the  smallest  regard  for  the  rights,  interests,  feelings, 
or  wishes  of  the  people  who  are  subject  to  it.  Enemies  and  strangers 
so  fastened  upon  the  community  will  certainly  rule  for  their  own 
pleasure,  advantage,  and  profit.  Any  person  who  does  not  know  this 
to  be  a  fundamental  fact,  established  by  all  human  experience  and 
underlying  the  whole  science  of  government,  is  not  at  all  prepared  to 
consider  this  subject,  and  he  had  better  give  no  further  attention  to 
it.  But  if  he  understands  that  much,  he  also  knows  that  the  want  of 
home-rule  in  Ireland  is  the  want  of  everything  else.  As  a  consequence 
of  that  privation  she  is -oppressed,  degraded,  insulted,  steeped  in  pov 
erty  to  the  very  lips,  and  overwhelmed  with  afflictions,  which  make 
her  peculiarly  what  Senator  Bayard  has  called  her — "the  Island  of 
Sorrows." 

The  general  notion  is  that  England  and  Ireland  are  united  king 
doms  ;  they  are  called  so  in  the  style  and  title  of  the  Queen.  But 
there  is  no  real  union,  and  there  never  was.  There  is  a  connection 


MISCELLANEOUS.  159 

made  by  force  ;  they  are  "pinned  together  with  bayonets."  Ireland 
is  not  governed  according  either  to  the  common  or  statute  law  of  Eng 
land,  but  by  special  legislation  made  for  her  alone.  An  act  of  Par 
liament  passed  for  the  general  benefit  of  the  Queen's  subjects  does  not 
apply  to  the  Irish  people  unless  they  are  particularly  included  by  name. 
The  old  statutes  and  royal  concessions  to  popular  liberty  are'  so  inter 
preted  as  well  as  the  later  ones.  Thus  Ireland  is  construed  out  of 
Magna  Charta,  the  Bill  of  Eights,  and  other  great  securities  which 
make  Englishmen  safe  against  injustice.  In  effect,  the  British  Gov 
ernment,  which  is  a  limited  monarchy  at  home,  becomes  an  unre 
strained  and  absolute  despotism  when  it  crosses  the  channel ;  and  the 
exercise  of  this  unbounded  power  through  all  the  centuries  of  its  ex 
istence  has  been  marked  with  the  coarsest  cruelty  and  the  most  heart 
less  oppression  that  this  world  has  ever  witnessed. 

If  the  Irish  had  been  inferior  to  the  race  which  trampled  them 
down,  their  fate  would  seem  less  hard.  But,  intellectually  and  mor 
ally,  they  were  greatly  superior;  their  civilization,  science,  art,  and 
general  intelligence  were  much  further  advanced.  The  deliberate  and 
long-continued  effort  of  England  to  darken  the  mind  of  Ireland  and 
reduce  her  people  as  much  as  possible  to  ignorance  and  illiterate  bar 
barism  is  a  most  shocking  part  of  the  story.  But  I  do  not  now  pro 
pose  to  tell  it ;  or,  indeed,  to  go  back  upon  the  past  at  all,  more  than 
is  necessary  to  explain  the  existing  state  of  things. 

Undoubtedly  much  of  the  present  trouble  is  directly  caused  by  the 
unnatural  relations  existing  between  the  millions  whose  labor  cultivates 
the  soil,  and  the  landlords,  small  in  number  but  great  in  power,  who 
stand  ready  to  snatch  away  the  fruits  of  it  as  soon  as  they  are  gathered. 
Perhaps  it  does  not  make  much  practical  difference  how  this  domina 
tion  of  the  few  over  the  many  was  established,  but  it  is  some  mental 
aggravation  of  the  wrong  to  think  that  it  had  its  origin  in  mere  rob 
bery.  The  Irish  were  themselves  the  owners  in  full  property  of  the 
land  which  they  now  cultivate  only  for  the  benefit  of  their  oppressors. 

The  first  conquerors  simply  and  unceremoniously  appropriated  the 
property.  A  forcible  entry  and  detainer  was  held  to  be  a  good  title, 
and  the  original  owner  was  supposed  to  have  lost  his  right  merely  be 
cause  he  was  not  strong  enough  to  keep  it.  But  the  whole  island  was 
confiscated  again  and  again,  some  of  it  five  times  over,  before  it  got 
into  hands  rapacious  and  loyal  enough  to  suit  the  policy  of  England. 
Then,  however,  the  landlord  system  went  into  full  operation.  The 
great  mass  of  the  people  were  tenants,  and  every  tenant  was  a  slave,  if 
it  be  true,  as  it  certainly  is,  that  the  essence  of  slavery  consists  in 
making  one  man  labor  while  another  takes  his  earnings.  A  lease  was 
a  mortgage  of  the  tenant's  life  and  the  life  of  his  family,  without  the 
equity  of  redemption.  It  compelled  him  to  work  incessantly,  with 
every  limb  stretched  and  every  muscle  swelled,  from  morning  to  night, 


160  MISCELLANEOUS. 

for  "the  bit  and  the  drop" — that  is,  the  smallest  quantity  of  food 
and  drink  that  he  and  his  children  could  live  on — with  a  thatched  roof 
above  them  and  a  little  turf  on  the  hearthstone.  Very  often  they  did 
not  get  that.  A  month's  sickness  reduced  them  to  hopeless  want,  and, 
if  a  crop  failed,  starvation  carried  them  off  by  the  thousand.  Such 
has  been  the  operation  of  the  system,  such  it  is  at  the  present  moment, 
and  the  English  Government  is  doing  all  it  can  to  perpetuate  it. 

You  may  say  what  you  will  about  the  sacred  right  of  property — 
nobody  believes  it  more  devotedly  than  I  do  ;  concede  that  these  land 
lords  have  a  title  which  can  not  now  be  questioned ;  assume  that  an 
owner  of  property  may  rent  it  on  the  hardest  terms  he  can  exact — still, 
the  existence  of  that  gigantic  monopoly,  clothed  with  the  privilege  of 
desolating  a  country  and  starving  the  industry  of  a  people,  is  the  sad 
dest  fact  in  the  history  of  the  human  race. 

We  must  speak  respectfully  of  England.  The  vast  wealth  of  her 
commerce  makes  it  everybody's  interest  to  stand  well  with  her.  Her 
armies  circle  the  earth  ;  her  fleets  cover  every  sea ;  the  long  reach  of 
her  diplomacy  perplexes  where  it  does  not  control  the  councils  of  all 
other  states.  This  is  power,  and  power  is  always  honored.  It  is  said 
of  Satan  himself  that  he  is  (l  sometimes  worshiped  for  his  burning 
throne. ?J  But  England  has  other  and  higher,  if  not  stronger,  claims 
upon  our  respect.  Her  literature  is  our  own,  and  from  her  we  derive 
much  of  our  science  and  art.  Englishmen  framed  the  best  of  our 
laws,  and  our  most  valuable  institutions  are  copied  from  theirs.  Magna 
Charta,  trial  by  jury,  habeas  corpus,  and  the  Bill  of  Rights,  are  their 
inventions.  We  can  not  but  remember  that  "  Chatham's  language  is 
our  mother-tongue,"  and  the  great  name  of  Hampden  ranks  only  sec 
ond  to  that  of  Washington.  Nor  can  we  forget  that  the  present  mon 
arch  of  that  country  is  a  Queen  whose  personal  virtues  have  a  richer 
value  than  all  the  jewels  in  her  crown.  But  those  ministerial  tools 
of  a  greedy  aristocracy,  who  have  done  and  are  now  doing  all  that  in 
them  lies  to  oppress  and  wrong  a  people  to  whom  they  owe  protection 
— are  they  fit  to  govern  ?  No,  not  to  live  !  If  I  had  the  voice  of  an 
"angel,  trumpet-tongued,"  I  could  not  speak  their  condemnation  more 
loudly  than  the  truth  would  warrant. 

Except  Ireland,  all  the  nations  of  the  earth  have  been  making  some 
progress.  Improvements  in  political  as  well  as  physical  science  and 
the  discovery  of  new  arts  have  brightened  the  face  of  the  civilized 
world,  and  given  dignity,  independence,  and  comfort  to  the  mass  of 
its  inhabitants.  But  the  condition  of  the  Irish  people  is  more  wretched 
than  ever.  A  single  fact  will  show  how  frightfully  true  this  is  :  During 
the  last  forty  years  the  population  of  other  countries  has  doubled  ;  in 
some  of  them  it  has  trebled,  and  the  average  amount  of  provision  and 
clothing  for  each  individual  is  two  and  a  half  times  as  great.  But  in 
Ireland,  with  a  more  genial  climate  and  a  soil  incomparably  rich,  the 


MISCELLANEOUS.  161 

numbers  have  been  reduced  from  nine  millions  to  five  ;  and,  of  those 
who  survive,  the  great  majority  are  suffering  the  last  extremes  of  want 
and  necessity.  Where  are  the  other  four  millions  and  their  multiplied 
offspring  ?  What  has  become  of  the  additional  twelve  millions  who, 
according  to  the  natural  rule,  should  be  living  there  now  in  comfort 
and  plenty  ?  Famine  has  thinned  them  out ;  pestilence  has  swept 
them  away ;  political  persecution  has  driven  them  abroad.  What  is 
the  cause  of  these  terrible  calamities  ?  All  men,  with  one  voice,  charge 
them  upon  that  atrocious  misgovernment  which  blights  and'  curses 
them.  When  the  blood  of  that  unhappy  people  cries  from  the 
ground,  the  British  tyrant  can  not  answer  like  Cain,  "  Am  I  my  broth 
er's  keeper  ?  "  The  rulers  of  a  nation  are  its  keepers,  responsible  for  its 
fate,  and  these  men  have  an  awful  account  to  render.  For  every  false 
drop  in  their  veins  an  innocent  life  has  perished. 

But  if  the  Irish  could  not  live  by  cultivating  the  soil,  why  did 
they  not  go  to  some  other  employment  ?  This  is  a  pertinent  ques 
tion,  and  the  answer  to  it  covers  England  with  an  infamy  that  noth 
ing  else  can  match.  In  fact  and  in  truth  they  did  betake  themselves 
to  commerce  and  manufactures,  and  the  hope  was  bright  before  them 
of  a  perfect  success.  But  their  English  enemies  ruthlessly  broke  up 
their  business  by  penal  legislation,  destroyed  their  trade,  both  foreign 
and  domestic,  by  arbitrary  prohibitions  crushed  out  their  enterprise, 
and  forced  them  back  upon  the  land. 

Then  why  don't  they  fight  ?  They  have  tried  that  too.  They 
never  sunk  into  tame  submission.  The  most  pathetic  passages  of  his 
tory  record  the  incidents  of  their  struggle  ;  their  rights  have  been  as 
serted  with  surpassing  eloquence  ;  the  purest  poetry  in  any  language 
celebrates  their  valor.  A  long  line  of  their  most  illustrious  men  have 
suffered  martyrdom  in  the  cause  of  liberty,  and  the  common  file  of 
the  people  maintain  a  character  for  turbulent  disloyalty  which  ought 
to  excite  universal  admiration.  Their  spirit  was  never  broken  ;  they 
lack  no  gall  to  make  oppression  bitter. 

But  each  defeated  effort  to  right  themselves  was  made  an  excuse 
for  the  infliction  of  new  outrages.  Whole  districts  were  depopulated 
by  the  process  which  they  called  a  clearance — that  is,  the  destruction 
of  all  habitations  and  the  expulsion  of  all  occupants,  accompanied  by 
circumstances  of  the  direst  cruelty.  No  chance  was  lost  to  hang  or 
imprison  a  patriot.  The  higher  he  stood  for  talents  and  integrity  the 
surer  he  was  to  be  claimed  by  the  scaffold  or  the  dungeon.  The  yoke 
was  tightened  on  all  who  were  allowed  to  live  and  go  at  large.  It  was 
a  mortal  offense  to  meet  and  petition  for  the  redress  of  grievances. 
Political  opinions  adverse  to  the  government  were  sure  to  call  down 
its  wrath  and  malice.  Even  the  fidelity  of  the  people  to  their  reli 
gious  convictions,  the  highest  virtue  that  can  adorn  any  human 
character,  was  imputed  to  them  as  a  crime,  and  punished  so  bar- 
11 


162  MISCELLANEOUS, 

barously  that  it  can   not  be   thought  of  without  detestation   and 
horror. 

I  deny  that  this  was  in  any  true  sense  a  conflict  of  religious  opin 
ion.  Let  no  Protestant  slander  his  church  by  asserting  that  its  doc 
trines  contain  any  warrant  for  persecuting  those  who  dissent  from  it. 
No  Christian  man,  with  a  conscience  of  his  own,  ever  thought  himself 
authorized  to  force  the  conscience  of  another.  English  bigotry  was 
merely  simulated  to  cover  English  rapacity.  I  admit  that  the  penal 
laws  aimed  directly  at  Catholics — their  worship  prohibited,  their  priest 
hood  hunted  down,  their  churches  taken  from  them,  their  schools  sup 
pressed,  unarmed  and  helpless  men,  women  and  even  children  butch 
ered  on  no  charge  but  that  of  misbelief — these  things  did  certainly 
look  like  sincere  antipathy  to  the  religion  of  the  victims.  But  it  was 
mere  political  piety,  which  is  always  a  sham  and  a  false  pretense. 
For  this  judgment  I  can  give  you  cogent  reasons.  In  the  first  place, 
before  any  ecclesiastical  division  took  place,  the  Irish  were  robbed  and 
murdered  as  basely  as  they  were  afterward.  Secondly,  at  all  times 
since  the  Eef  ormation,  Irish  Protestants  who  stood  in  the  way  of  Eng 
lish  greed  were  persecuted  just  the  same  as  Catholics.  None  suffered 
more  than  the  Presbyterians  in  the  northern  counties  ;  none  came  to 
this  country  with  a  deeper  hatred  of  British  tyranny  or  fought  more 
bravely  to  overthrow  it  here.  Lastly,  the  whole  system  has  been 
abandoned  within  this  generation.  All  Englishmen  now  acknowledge 
that  the  claim  once  made,  to  force  upon  the  Irish  a  religion  which 
they  did  not  believe,  was  a  great,  monstrous,  bloody  lie.  Why  should 
we  not  take  them  at  their  word  ? 

But  what  concern  have  we  in  this  contest  ?  Why  should  we  be 
disturbed  by  wrongs  which  we  neither  suffer  nor  inflict  ?  I  answer 
that,  situated  as  we  are,  it  is  impossible  to  restrain  our  sympathies  or 
school  our  feelings  to  the  policy  of  a  cold  indifference.  The  Koman 
dramatist  said,  "  I  am  a  man,  and  therefore  interested  in  all  things 
human."  These  Irish  are  not  merely  human  ;  they  are  not  Tartars, 
Mongols,  Indians,  Chinese,  or  negroes — far  off  and  doubtfully  con 
nected  with  humanity.  They  belong  to  our  own  imperial  race,  whose 
physical  structure,  mental  endowments,  and  capacity  for  improvement, 
put  them  ever  in  the  foremost  rank  of  men.  More  than  that — they  are 
our  kith  and  kin  ;  we  trace  their  ancestors  in  the  line  of  our  own  de 
scent  ;  their  blood,  mingled  with  affluent  streams  from  other  sources, 
flows  in  our  own  veins.  We  are  near  to  them  in  another  sense — 
the  steamer,  the  telegraph,  and  the  newspaper  keep  us  in  constant 
communication.  If  a  new  outrage  is  at  this  moment  breaking  the 
dull  uniformity  of  their  misery,  all  America  will  know  it  before  break 
fast  to-morrow  morning.  Moreover,  we  owe  them  a  heavy  debt, 
which  we  can  not  repudiate  without  dishonor.  They  fought  by  our 
side  on  every  battle-field  of  the  Revolution,  and  after  Independence 


MISCELLANEOUS.  163 

they  assisted  to  frame  our  institutions.  At  least  five  times  since  then 
their  exiles  settled  among  us  have  aided  to  save  our  liberty  from  de 
struction.  They  helped  in  1800  to  rescue  us  from  the  clutches  of 
Federalism,  which  was  tearing  out  the  vitals  of  our  government. 
Supported  by  them,  we  went  through  the  blood  and  fire  of  1812. 
They  stood  by  Jackson  in  his  desperate  combat  with  a  monster  monop 
oly.  At  a  later  day  and  in  another  crisis,  uniting  with  the  honest 
Germans  and  the  decent  part  of  our  native  citizens,  they  .gave  us 
strength  enough  to  repel  the  foulest  assault  that  ruffianism  and  hypoc 
risy  ever  made  upon  religious  freedom.  They  were  foremost  in  the 
fight  for  the  Union  when  assured  that  its  object  was  simply  to  main 
tain  the  supremacy  of  the  laws  ;  and  they  had  no  share  in  that  per- 
jurious  treachery  which  subverted  the  Government  instead  of  defend 
ing  it.  They  were  faithful  to  the  Constitution  when  it  had  only 
seven  friends  in  the  Senate,  and  its  avowed  enemies  were  two  to  one 
in  the  lower  house  of  Congress ;  when  the  President  was  impeached 
for  a  feeble  effort  to  support  it,  and  the  Supreme  Court  itself  dodged 
and  faltered  and  hesitated  to  decide  that  a  free  citizen  could  not  be 
arrested  without  a  warrant  or  hung  without  a  trial.  I  speak  of  them 
as  a  body  and  of  their  general  behavior.  Doubtless  there  are  many 
individual  exceptions  of  which  I  know  nothing.  But  fifty  years  ago 
and  upward  John  Eandolph  said  this  :  "I  have  seen  a  white  crow, 
and  heard  of  black  swans,  but  an  Irish  opponent  of  American  liberty 
I  never  either  saw  or  heard  of." 

But  what  can  we  do  for  them  ?  How  can  we  help  them  in  this 
fearful  strait  ?  We  have  no  right  to  come  between  England  and  her 
subjects  by  any  kind  of  force  or  violence,  for  that  is  prohibited  by  the 
law  of  both  countries  and  by  treaty  stipulations.  But  you  have  ways, 
well  understood,  of  giving  moral  comfort  and  material  aid  which 
break  no  law.  The  most  devoted  adherents  of  the  British  ministry 
acknowledge  that  the  success  of  their  Irish  policy  is  more  endangered 
by  your  opposition  to  it  than  by  all  other  causes  put  together.  A 
land  league  merely  Irish  they  can  easily  repress,  but  a  league  with  its 
roots  on  this  side  of  the  Atlantic  will  grow  to  be  a  power,  not  merely 
formidable  but  fatal  to  the  ascendency  of  the  landlords.  To  make 
this  more  intelligible  will  require  a  brief  look  at  the  situation. 

The  formation  of  the  Land  League,  or  rather  the  assumption  of 
its  present  attitude,  was  a  new  era  in  the  history  of  the  contest.  Agri 
cultural  laborers  resolved  that  they  would  not  work  for  their  ene 
mies,  and  tenants  said  they  would  voluntarily  pay  no  rent  without 
distinct  assurance  of  some  permanent  and  substantial  relief  to  the 
country.  Acting  upon  the  precept  of  the  early  Christians  to  bear  one 
another's  burdens,  they  solemnly  covenanted  that  each  should  be  sup 
ported  by  the  strength  of  all  the  rest.  It  was  the  grandest  labor- 
strike  on  record. 


164  MISCELLANEOUS. 

The  association  was  perfectly  lawful.  No  criminal  design  was 
ever  imputed  to  it.  Active  assistance  they  would  not  render  to  their 
adversaries,  but  passive  obedience  to  the  law  they  would  yield  when 
they  must.  Nevertheless,  it  spread  panic  among  landlords,  middle 
men,  and  bailiffs.  They  could  not  drive  laborers  to  the  field  under 
the  lash  of  an  overseer,  and  they  could  not  recover  their  rents  by 
actions  at  law,  for  the  tenant  had  a  defense  which  no  honest  court 
could  overrule.  In  a  large  majority  of  cases  the  contracts  between 
the  landlords  and  tenants  were  not  free  nor  fair,  but  forced  by  the 
dread  of  eviction.  Gladstone,  the  prime  minister  himself,  declared 
that  "  eviction  was  the  same  as  a  sentence  of  death  "  ;  and  certainly  a 
bargain  extorted  by  the  terror  of  death  carries  with  it  no  legal  or  moral 
obligation.  It  is  wholly  void,  not  as  to  the  excess  alone,  but  all 
through,  so  that  there  can  be  no  recovery  of  any  part.  The  landlords 
were  in  evil  plight.  They  had  thought  the  law  was  made  only  for 
them,  and  they  were  disconcerted  when  they  found  it  invoked  against 
them.  The  contest  deepened  as  it  grew  more  intense.  Some  of  the 
landlords  took  new  views  of  their  duties  ;  the  league  pressed  its  ap 
peal  to  the  heart  and  conscience  of  the  British  nation,  and  so  a  great 
revolution  took  place  in  public  opinion.  A  new  Parliament  was 
elected,  which  included  among  its  members  the  boldest  and  most  elo 
quent  leaders  of  the  league  ;  and  a  new  ministry  came  in,  solemnly 
pledged  that  Ireland  should  have  justice  without  sale,  denial,  or  delay. 

The  Parliament  assembled,  and  it  soon  became  evident  that  the 
ministry,  instead  of  facing  the  great  question  of  the  day  like  men, 
were  anxious  only  to  shuffle  out  of  their  promises.  Pushed  by  the 
Irish  representatives,  they  threw  themselves  into  the  arms  of  the  To 
ries,  and  the  two  parties  exerted  their  joint  ingenuity  to  contrive  some 
excusable  way  of  not  doing  it.  They  utterly  failed.  The  land  act  of 
1880  was  a  mere  abortion.  No  attempt  was  made  to  sustain  it ;  in 
less  than  a  year  it  ceased  to  live,  and  was  buried  out  of  sight.  Some 
thing  had  to  be  furnished  in  place  of  it.  In  spite  of  all  warning,  and 
against  the  steady  protest  of  the  wisest  men,  the  land  act  of  1881  was 
elaborated  and  brought  forth.  Again  all  hopes  were  disappointed ; 
the  new  act  exasperated  everybody,  and  made  the  antagonism  between 
the  parties  more  deadly  than  ever.  For  this  there  were  good  and  suf 
ficient  reasons.  The  principal  (at  least  the  most  taking)  feature  of 
that  enactment  was  the  privilege  it  gave  to  an  Irish  tenant  of  citing 
his  landlord  before  a  judge  or  commission,  and  getting  an  abatement 
of  the  accrued  rent,  if  the  tribunal  in  its  caprice  or  its  mercy  should 
choose  to  pronounce  it  exorbitant.  Landlords  cried  out  upon  this 
as  an  arbitrary  interference  with  their  vested  rights,  and  tenants  saw 
that  it  cut  them  off  from  showing  that  the  claims  were  illegal.  Both 
were  right,  for  in  every  case  where  a  reduction  took  place  somebody 
must  suffer :  the  landlord,  if  his  contract  was  valid ;  the  tenant,  if 


MISCELLANEOUS,  165 

it  was  void.  Besides,  it  created  a  power  sure  to  be  abused.  The 
rights  of  the  parties  were  not  to  be  measured  by  any  legal  standard, 
and  the  unlimited  discretion  of  the  court  was  not  to  be  controlled  by 
a  jury.  Thus,  matters  affecting  the  most  vital  interests  of  every 
suitor  were  to  be  determined  without  the  judgment  of  his  peers,  and 
with  no  regard  for  the  law  of  the  land.  These  are  not  the  worst  ob 
jections  to  the  thing.  It  is  wholly  inadequate  to  the  needs  of  the 
people.  It  does  not  sensibly  or  permanently  lighten  their  burdens  ; 
it  gives  them  no  security  against  future  wrongs  ;  it  concedes  to  them 
no  natural  right ;  it  totally  ignores  the  beneficent  principle  of  local 
self-government,  while  it  guards  the  power  of  the  alien  ruler  with 
"  love  strong  as  death,  and  jealousy  as  cruel  as  the  grave." 

The  ministry  knew  very  well  that  this  was  no  remedy  for  the 
chronic  disease  that  was  taking  the  life  out  of  Ireland.  Doubtless 
they  thought  it  might  serve  as  a  palliative,  or  at  least  stop  the  screams 
of  the  patient  for  a  time.  But  it  failed  to  do  even  that.  It  was  a  quack 
plaster,  which  covered  scarcely  a  perceptible  part  of  the  sore,  and 
what  it  did  touch  was  made  worse  by  its  poisonous  irritation.  The 
leaders  of  the  people  besought  them  not  to  swallow  this  stone,  which 
they  were  offered  in  place  of  the  bread  they  had  asked  for.  They  ex 
horted  them  to  maintain  their  attitude  of  passive  obedience  and  keep 
up  the  peaceful  strike,  until  its  object  should  be  at  least  in  some  meas 
ure  accomplished,  which  meant,  "  Without  legal  compulsion  pay  no 
rent,  and  do  no  work  for  these  tyrants  so  long  as  they  refuse  to  take 
their  feet  from  off  your  necks."  To  the  unanswerable  wisdom  and 
truth  of  this  advice  the  Government  had  nothing  to  oppose  except 
brute  force.  The  league  was  called  a  conspiracy  ;  its  petition  for  jus 
tice  was  declared  to  be  a  revolt ;  its  meetings  were  dispersed ;  the 
members  of  Parliament  who  had  claimed  fulfillment  of  the  ministerial 
promises  were  arrested ;  five  hundred  leading  men,  distinguished  as 
advocates  of  justice  to  Ireland,  and  guiltless  as  the  child  unborn  of 
any  other  offense,  were  kidnapped,  dragged  from  their  homes,  and 
thrust  into  prison. 

For  a  long  time  Europe  has  seen  no  tyranny  so  atrocious  as  this. 
"Within  half  a  century  Russian  despotism  has  not  practiced  that  kind 
of  cruelty,  even  in  Poland,  on  a  scale  so  gigantic.  The  Turk  has  been 
On  his  good  behavior  ever  since  the  Greek  Revolution.  It  is  more  than 
a  hundred  years  ago  that  the  Bastiles  of  France  used  to  be  filled  with 
the  victims  of  personal  and  political  spite.  The  English  Government 
is  more  despotic  than  all  the  rest.  It  is  a  mixture  of  feudal  barbarism 
and  Oriental  duplicity,  harder  to  bear  than  mediaeval  tyranny.  The 
hand  of  Gladstone  is  heavier  on  the  heart  of  Ireland  than  the  iron  heel 
of  Henry  II.  Do  not  forget  that  these  sufferers  are  men  of  upright, 
honorable,  and  pure  lives  ;  they  suffer  because  of  their  good  character. 
No  man  liable  to  be  condemned  according  to  the  law  is  ever  smitten 


166  MISCELLANEOUS. 

against  law.  The  worst  rulers  are  content  with  the  regular  ma 
chinery  of  justice  when  they  desire  to  suppress  actual  crime.  It  is 
only  against  the  innocent  that  they  employ  the  agency  of  the  bravo 
and  the  kidnapper.  The  very  order  to  seize  these  men,  and  keep  them 
imprisoned  without  trial,  is  proof  conclusive  that  they  have  done  noth 
ing  worthy  of  death  or  bonds.  They  are  accused  of  being  suspected 
of  believing  that  the  land  act  of  1881  was  not  that  kind  of  justice  Ire 
land  needed  or  had  a  right  to  expect.  I  say  that  is  a  great  truth, 
and  when  you  suspect  a  man  of  believing  it  you  suspect  only  that  he 
is  virtuous  and  wise.  When  the  Government  arrests  a  man  on  that 
kind  of  suspicion  and  refuses  him  a  trial,  its  officers  give  him  the 
strongest  certificate  of  good  character  they  can  make,  and  they  confess 
themselves  guilty  of  simple  kidnapping. 

Mr.  Forster  and  others  engaged  in  committing  these  outrages  utter 
a  shocking  absurdity  when  they  say  that  their  object  was  to  maintain 
law  and  preserve  order.  They  commit  crimes  that  strike  Heaven  in 
the  face,  and  pretend  to  be  doing  it  for  the  sake  of  the  law  that  they 
violate.  They  break  the  faith  that  holds  the  moral  world  together, 
destroy  all  security  for  personal  rights,  establish  a  reign  of  terror,  and 
they  call  that  social  order  !  Is  not  this  a  contradiction  in  terms  and  a 
mere  mockery  of  common  sense  ?  I  am  able  to  maintain  against  all 
opposers  that  to  seize  an  innocent  man,  put  him  in  prison  and  hold 
him  there,  deprived  of  his  liberty,  is  among  the  offenses  against  divine 
and  human  law  which  can  not,  under  any  circumstances,  ever  be  justi 
fied.  This  is  true  when  it  is  perpetrated  by  one  private  person  upon 
another  ;  but  it  is  almost  infinitely  worse  when  done  by  a  magistrate, 
whose  sacred  duty  it  is  to  prevent  such  wrongs,  not  to  commit  them 
himself. 

For  aught  I  can  see,  the  kidnapping  of  five  hundred  innocent  per 
sons  for  not  believing  in  the  land  act  was  as  lawless  as  so  many  mur 
ders.  The  secretary  and  lord-lieutenant  might  just  as  properly  have 
silenced  opposition  to  their  measures  by  private  assassination.  An 
order  that  dissatisfied  Irishmen  should  be  stabbed  in  their  sleep  or 
poisoned  in  their  food  would  seem  more  ferocious,  but  not  less  incon 
sistent  with  justice  or  humanity.  If  Mr.  Parnell  and  the  league  had 
managed  to  carry  off  Mr.  Forster  and  five  hundred  of  his  ablest  friends 
and  kept  them  immured  in  dungeons  for  a  period  of  hopeless  end,  the 
case  could  have  been  very  plain  but  not  worse  than  what  Mr.  Parnell 
has  suffered,  nor  quite  so  bad,  for  the  injury  to  him  was  inflicted  by 
the  very  hand  that  was  specially  bound  to  protect  him. 

This  charge  of  lawlessness  is  not  answered  by  showing  that  the 
atrocities  complained  of  were  done  with  the  approbation  of  Parlia 
ment.  That  body  could  not  give  to  such  crimes  the  sanctity  of  legal 
justice.  I  admit  that  Parliament  is  unlimited  in  its  power  to  legis 
late,  but  an  exparte  order  to  kill  or  imprison  a  man  is  not  legislation. 


MISCELLANEOUS.  167 

The  coercion  act  is  not  a  law,  but  a  sentence.  As  a  doom  pronounced 
upon  innocent  and  absent  parties  without  notice,  hearing,  or  trial,  it 
was  of  course  irregular,  unjust,  and  unauthorized  ;  but  still  it  was,  in 
its  nature,  an  adjudication  against  particular  persons,  not  a  rule  of 
action.  When,  therefore,  the  Viceroy  and  the  Secretary  for  Ireland 
plead  the  coercion  act,  they  do  not  justify  their  hideous  crime,  but 
only  prove  that  a  majority  of  the  Lords  and  Commons  are  among  their 
accomplices. 

If  Herod  of  Judea  had  got  an  order  from  the  Sanhedrim  or  some 
legislative  council  directing  him  to  kill  every  child  in  Bethlehem 
whom  he  or  his  deputies  suspected  of  being  less  than  two  years  old, 
would  that  have  sanctified  the  "slaughter  of  the  innocents"?  In 
point  of  fact,  he  had  the  legislative  approval,  for  he  was  himself  the 
law-making  power,  as  well  as  the  executive.  So  was  Charles  IX,  when 
he  put  the  lives  of  Coligny  and  his  friends  at  the  mercy  of  the  Guises, 
and  so  brought  on  the  tragedy  of  St.  Bartholomew's  eve.  Louis  XIV 
could  gratify  the  spies  and  pimps  about  his  court  by  sending  innocent 
men  and  women  to  rot  in  his  Bastiles,  and  say  :  "  This  is  the  law  ;  the 
state  does  it ;  I  am  the  state."  The  Koman  Senate  did  actually  con 
cur  with  Nero  in  the  decree  which  let  loose  the  praetorian  guards 
upon  all  who  were  suspected  of  believing  in  the  gospel ;  but  that  takes 
nothing  from  the  historical  infamy  of  the  imperator,  though  it  does 
add  much  to  the  bad  reputation  of  the  conscript  fathers. 

In  a  court  appointed,  paid,  and  owned  by  the  British  Government 
and  sitting  in  Ireland,  this  coercion  act,  which  the  ministry  got  a 
facile  Parliament  to  pass,  will  probably  be  allowed  to  have  some  tech 
nical  effect,  but  in  the  eye  of  reason  and  justice  it  is  no  extenuation  at 
all  of  their  gross  misconduct. 

Thus  far  I  have  spoken  of  the  case  as  it  stands  between  the  British 
Government  and  its  Irish  subjects.  Upon  this  we  can  only  assist  with 
our  voices  in  making  up  the  judgment  of  the  world.  But  recent 
events  have  given  us  a  more  particular  interest  in  the  subject-matter. 
American  citizens  have  been  kidnapped  as  basely  as  the  Irish  patriots. 
What  will  we  do  about  that  ?  I  know  not.  Our  own  history  has  not 
always  been  a  proud  one,  our  diplomatic  record  is  not  free  from  blun 
ders  ;  and  the  argumentum  ad  hominem,  while  it  proves  nothing,  may 
embarrass  discussion.  But  if  we  submit  to  this  insult,  we  must  ac 
knowledge  that  England  is  the  master  of  Ireland  and  America  both. 
If,  on  the  other  hand,  we  call  that  lawless  power  to  a  proper  reckoning, 
she  will  see  the  necessity  not  only  of  discharging  the  American  prison 
ers,  but  of  making  full  and  ample  reparation,  lest  a  worse  thing  come 
upon  her.  The  release  of  the  Irish  will  necessarily  follow,  for  Eng 
land  can  not  afford  to  admit  that  she  has  yielded  to  fear  what  she 
denies  to  justice.  This  will  advance  the  interests  of  freemen  more 
than  anything  that  has  happened  since  Wellington  and  Peel  knocked 


168  MISCELLANEOUS. 

under  to  the  demand  for  Catholic  emancipation.  But  the  present 
ministry  may  not  be  as  wise  as  their  predecessors.  They  may  resist 
our  demand  and  bring  on  a  breach  of  the  extremely  pleasant  relations 
now  existing  between  the  two  governments.  What  then  ?  I  venture 
no  prediction,  but  I  do  know  that  every  true-hearted  man  in  America 
will  be  glad  of  the  chance  to  quarrel  for  a  cause  like  that. 

I  make  no  argument  on  the  case.  There  is  no  open  question  about 
it.  International  law  defines  with  perfect  clearness  how  a  citizen  of 
one  country  may  and  must  be  treated  when  sojourning  within  the 
territorial  jurisdiction  of  another.  If  that  were  not  enough,  we  have 
treaties  of  amity,  peace,  and  commerce  with  Great  Britain  which  admit 
of  no  doubtful  interpretation.  Let  no  man  fool  you  into  the  belief 
that  England  can  lawfully  kidnap  an  American  without  being  respon 
sible  for  the  injury.  Listen  to  no  scurvy  politician  who  tells  you  that 
there  is  any  difference  in  this  respect  between  a  native  and  a  natural 
ized  citizen.  There  is  no  difference — not  a  particle.  One  has  pre 
cisely  the  same  right  as  the  other  to  go  forth  unmolested  over  every 
sea  and  every  land.  So  says  our  own  law ;  so  says  the  public  law  of 
Christendom. 

What  is  to  be  the  final  outcome  of  the  struggle  ?  It  needs  no 
prophet  to  foresee  that  Ireland  is  doomed  to  total  destruction  if  she  be 
not  supported  and  sustained  by  strength  outside  of  her  own.  But  if 
we,  the  American  people,  shall  perform  our  duties  fairly  well,  and  if 
our  Government  shall  not  attempt  to  shirk  out  of  its  public  responsi 
bilities,  the  hope  is  a  reasonable  one  that  some  of  us  now  here  may  live 
to  see  Ireland  "redeemed,  regenerated,  and  disenthralled." 

It  seems  to  me  that  the  friends  of  Ireland,  at  home  as  well  as  here, 
have  very  indefinite  ideas  of  the  ultimate  purpose  they  are  seeking  to 
attain.  Of  course,  they  all  desire  to  save  their  country.  But  what  is 
salvation  ?  In  what  form  or  by  what  means  is  it  expected  to  come  ? 
How  would  they  go  about  to  restrain  misrule,  protect  life,  secure  lib 
erty,  and  prevent  labor  from  being  robbed  of  the  bread  it  earns  ? 
These  are  questions  upon  which  there  is  a  painful  diversity  of  opinion, 
and,  if  I  am  not  mistaken,  a  vagueness  of  thought  which  greatly  weak 
ens  the  movement. 

I  will  not  presume  to  advise  them,  but  it  is  manifest  that  they 
should  demand  nothing  extravagant  or  unreasonable  ;  nothing  which 
it  is  impossible  to  get ;  nothing  unjust,  communistic,  or  agrarian  ; 
nothing  which  could  affect  injuriously,  the  rights  of  property;  noth 
ing,  in  short,  except  what  ought  to  be  yielded.  What,  then,  should 
they  specify  as  their  defined  object  ? 

Not  independence.  That  is  impossible  at  this  time  ;  you  might  as 
well  reach  for  the  moon,  and  hope  to  pull  it  down.  Those  two  islands 
can  not  now  be  politically  separated.  If  a  total  political  separation 
from  England  were  possible,  it  ought  to  be  accomplished  and  doubtless 


MISCELLANEOUS.  169 

it  would  have  been  long  ago,  for  the  Irish  have  suffered  wrongs  a 
thousand  times  greater  than  those  for  which  we  rebelled  against  that 
same  power.  If  Ireland  could  successfully  rise  up  against  that  bloody, 
tyrannical  Government,  "throw  off  the  shackles  of  usurped  control  and 
hew  them  link  from  link,"  every  honest  American  heart  would  swell 
with  pleasure  to  witness  it.  But  we  are  obliged  to  think  of  something 
less  desperate.  We  can  not,  at  least  for  the  present,  advise  them  to 
go  out  on  a  forlorn  hope. 

But  local  self-government  is  another  thing.  It  is  the  interest  of 
England,  as  well  as  her  duty,  to  grant  that.  If  the  Irish  people  were 
in  full  possession  of  the  right  to  administer  their  own  domestic  affairs, 
they  could  perform  their  duties  to  the  empire  a  thousand  times  better 
than  now.  They  would  be  the  pride  and  the  strength  of  England  ; 
not  what  they  are — the  weakness,  the  misfortune,  and  the  shame. 
When  we  consider  how  easily,  cheaply,  and  safely  this  unspeakable 
benefit  might  be  bestowed,  it  is  literally  amazing  to  see  it  withheld.  It 
is  but  erecting  one  or  more  political  corporations,  which  you  may  call 
states,  or  territories,  or  provinces,  to  make,  administer,  and  execute 
laws  upon  subjects  which  concern  nobody  but  themselves,  and  with 
such  limitations  upon  the  power  as  may  seem  necessary  to  prevent  its 
possible  abuse.  If  this,  coupled  with  a  satisfactory  adjustment  of  land 
tenures,  would  not  start  Ireland  on  a  career  of  peace  and  prosperity, 
then  all  history  is  false,  all  experience  delusive,  and  all  philosophy  a 
woven  tissue  of  lies.  Yet  the  average  Englishman  can  not  hear  of 
home-rule  for  Ireland  without  becoming  infuriated,  and,  if  he  happens 
to  be  clothed  with  a  little  brief  authority,  he  falls  to  killing  and  kid 
napping  right  and  left  whenever  he  can  find  men  with  spirit  and  prin 
ciple  enough  to  express  opinions  in  its  favor.  This  insane  animosity 
can  not  last  much  longer.  But  political  freedom  can  scarcely  exist  for 
a  people  subjected  to  the  personal  bondage  of  the  Irish  landlord  sys 
tem.  Can  that  be  abolished  without  violating  honor  and  justice,  or 
breaking  over  the  legal  defenses  of  property  ?  Let  us  see  what  can  or 
can  not  be  done  in  that  direction. 

It  is  a  mere  truism  to  say  that  the  land  belongs  to  the  owners. 
The  title  is  in  the  landlords,  and  can  not  be  questioned  with  any 
decent  show  of  truth.  To  take  it  from  them  and  give  it  to  the  ten 
ants  would  be  naked  robbery,  not  in  the  least  mitigated  by  the  con 
sideration  that  the  tenants  need  it  and  the  landlords  can  live  without 
it.  The  eighth  commandment  is  addressed  alike  to  the  poor  and  the 
rich.  An  objection  similar  in  principle  lies  against  any  arrangement 
for  fixing  the  rent  by  a  public  assessor  or  for  reducing  it  without  the 
consent  of  the  landlord.  That  is  the  fatal  vice — fatal,  because  it  is  a 
moral  error  which  runs  through  the  land  act  of  last  year.  Ownership 
implies  complete  dominion.  A  man  is  not  the  owner  of  property  if 
he  can  not  keep  it,  or  lease  it,  or  sell  it  as  he  pleases.  It  would  be 


170  MISCELLANEOUS. 

as  righteous  to  take  the  land  itself  as  the  rent.  It  has  been  proposed 
that  the  landlords  should  sell  and  the  tenants  buy  the  lands  at  prices 
mutually  agreed  on,  which  is  rather  ludicrous,  considering  the  situa 
tion  of  the  parties.  The  present  land  act  points  in  a  weak  way  to  the 
policy  of  encouraging  this  by  government  aid.  But  as  a  general  plan 
it  can  never  succeed.  The  landlords  will  never  part  with  the  property 
unless  they  get  three  times  as  much  as  it  is  worth,  for  they  count  in 
as  part  of  its  value  the  power  they  now  have  of  making  the  tenants 
work  it  for  nothing.  They  want  to  sell  the  land  which  they  do  own, 
and  with  it  the  slaves  which  they  do  not  own,  at  the  highest  price  they 
can  put  upon  both. 

But  this  huge  mountain  of  sorrow  may  be  removed  easily,  cheaply, 
and  in  a  way  open  to  no  legal  or  moral  objection.  Every  established 
state — every  supreme  government  of  whatever  form — has  the  right  Of 
eminent  domain — that  is  to  say,  the  power  to  take  private  property  for 
public  use  upon  making  just  compensation.  It  is  a  distinct  and  well- 
understood  condition  of  all  titles  that  they  shall  be  surrendered  upon 
those  terms  when  the  general  good  requires  it.  The  sovereign  authority 
may  thus  annihilate  any  monopoly  which  can  not  exist,  or  is  not 
likely  to  exist,  without  serious  detriment  to  the  public  interests.  The 
property  of  the  Irish  landlords  comes  directly  within  the  range  of  this 
power.  The  exercise  of  it  would  not  be  agrarianism,  nor  confiscation, 
nor  plunder.  It  could  not  injuriously  affect  the  rights  of  any  human 
being,  but  it  would  reach  the  one  great  end  at  which  all  honest  gov 
ernment  is  aimed — the  well-being  of  the  whole  community. 

I  have  said  that  the  owners  of  property  so  taken  are  always  entitled 
to  just  compensation.  The  Irish  landlords  should  have  that  and 
nothing  more.  The  rule  for  ascertaining  what  ought  to  be  paid  in 
any  case  is  so  plain  that  no  fair-minded  man  could  miss  it.  The  act 
ual  value  of  land  is  not  measured  by  the  rent  which  a  landlord  could 
extort  from  a  helpless  tenant,  to  whom  eviction  is  death  ;  but  what  a 
prudent  and  industrious  man  who  cultivates  it  himself  could  make 
out  of  it  over  and  above  necessary  expenses  and  full  payment  for  his 
own  labor.  The  taking  would  not  include  any  property  actually  used 
by  the  landlords  themselves  for  their  own  pleasure  or  profit,  nor  any 
lands  leased  for  other  than  agricultural  purposes.  But  the  body  of 
the  land  now  under  cultivation  or  in  pasture  being  taken  by  the  pub 
lic  authorities  could  be  distributed  among  the  people  in  suitable  pieces, 
and  held  by  them  subject  to  a  tax  large  enough  to  pay  interest  on  the 
actual  value.  Upon  those  terms,  easy  to  the  tenant  and  just  to  the 
landlord,  Ireland  would  be  converted  into  a  nation  of  small  proprie 
tors,  independent  and  free. 

Our  fathers  in  Pennsylvania  encountered  exactly  the  same  trouble. 
They  grappled  with  it  like  true  men,  and,  rightfully  exercising  the 
power  of  eminent  domain,  they  put  an  end  to  it  speedily.  In  1779  the 


MISCELLANEOUS.  171 

Penn  family  owned  probably  more  than  four  fifths  of  her  territory. 
The  best  citizens,  dreading  the  fate  of  the  Irish,  were  beginning  to 
emigrate.  The  Legislature  declared  that  such  a  condition  of  things 
was  inconsistent  with  the  happiness,  safety,  and  freedom  of  the  Com 
monwealth.  They  divested  the  title  of  the  Penns,  and  provided  that 
in  place  of  the  lands  they  should  take  a  certain  just  compensation  in 
money.  Let  the  British  take  the  Pennsylvania  case  as  a  precedent. 
On  a  question  of  fundamental  law  or  national  justice  they  could  not 
have  higher  authority  than  the  steady  Quakers,  the  high-principled 
Germans,  and  the  free-hearted  Scotch-Irish  who  honored  that  State 
by  making  it  their  home.  If  the  beneficial  consequence  be  doubted, 
look  at  France,  where  the  peasantry  were  oppressed  and  degraded  by 
landlords  as  much  as  the  Irish.  But  one  result  of  the  great  Revolution 
was  to  divide  the  lands  among  small  proprietors,  and  now  the  work 
ing-men  in  the  several  departments  are  all  rich — forty -nine  out  of  every 
fifty  increase  their  fortunes  annually. 

I  make  no  appeal  to  your  sympathies  or  feelings.  Your  benevo 
lence  may  sleep  if  the  naked  statement  of  the  case  does  not  rouse 
it.  But  pardon  me  if  I  conclude  with  a  suggestion  which  touches 
your  material  interest.  In  all  countries  and  in  every  age  some  per 
sons  have  sought  not  only  to  live,  but  to  flourish  and  fatten,  upon  the 
industries  of  others.  Various  methods  of  effecting  their  objects  have 
been  introduced,  by  force  or  fraud  and  carried  on  under  legal  regula 
tion.  In  feudal  times  the  plan  of  those  who  held  power  was  uniform 
and  simple  ;  it  consisted  merely  in  extorting  rents  from  the  cultivators 
of  the  soil  and  taxes  from  those  who  worked  at  the  mechanic  arts.  In 
modern  days  other  inventions  for  the  same  purpose  have  been  sought 
after  and  found  out.  Land  and  labor  are  the  sources  of  all  wealth,  now 
as  much  as  ever,  and  the  legalized  schemes  are  innumerable  for  drain 
ing  it  away  from  those  who  create  it.  Some  of  these  devices  have 
been  brought  to  as  much  perfection  in  this  country  as  in  any  other. 
Here,  as  elsewhere,  unjust  legislation  and  cunning  arrangements  of 
business  grind  the  working-man  to  swell  the  colossal  fortunes  of  the 
upstart  adventurer.  Here,  as  elsewhere,  the  hastening  evil  is  upon  us 
of  a  community  "where  wealth  accumulates  and  men  decay."  The 
•struggle  to  be  free,  which  land  and  labor  are  making  in  Ireland,  is  not 
exclusively  an  Irish  affair.  We  make  it  a  common  cause,  not  merely 
because  the  love  of  justice  and  the  sense  of  right  impel  us,  but  because 
this  is  a  united  effort  to  deliver  ourselves  as  well  as  them  from  the 
hand  of  the  spoiler.  If  we  assist  Ireland  to  win  the  victory  she  hoped 
for,  we  expand  our  own  principles,  perfect  our  own  practice,  and 
strengthen  our  own  courage  for  a  contest,  perhaps  more  arduous, 
which  we  may  have  to  wage  on  our  own  account. 


172  MISCELLANEOUS. 


EAILEOAD  MONOPOLY.— ARGUMENT  TO  THE  JUDICIARY 
COMMITTEE  OF  THE  SENATE  OF   PENNSYLVANIA. 

MR.  CHAIRMAN  :  The  irrepressible  conflict  between  the  rights  of 
the  people  and  the  interest  of  the  railroad  corporations  does  not  seem 
likely  to  terminate  immediately.  I  beg  your  permission  to  put  our 
case  on  your  record  somewhat  more  distinctly  than  heretofore. 

Why  do  I  give  myself  this  trouble  ?  My  great  and  good  friend, 
the  President  of  the  Reading  Railroad  Company,  expresses  the  suspi 
cion  that  I  am  quietly  acting  in  the  interest  of  some  anonymous  corpo 
ration.  I  wish  to  contradict  that  as  flatly  as  I  can. 

The  charge  that  I  am  communist  enough  to  wish  the  destruction 
of  all  corporate  property  is  equally  untrue.  I  think  myself  the  most 
conservative  of  citizens.  I  believe  with  my  whole  heart  in  the  rights 
of  life,  liberty,  and  property,  and  if  anybody  has  struggled  more  faith 
fully,  through  good  report  and  evil,  to  maintain  them  inviolate,  I  do 
not  know  who  he  is.  I  respect  the  State  Constitution  ;  perhaps  I  am 
prejudiced  in  favor  of  natural  justice  and  equality.  I  am  convinced 
that  without  the  enforcement  of  the  fundamental  law  honest  govern 
ment  can  not  be  expected. 

These  considerations,  together  with  requests  of  many  friends,  should 
be  sufficient  reason  for  doing  all  the  little  I  can  to  get  "appropriate 
legislation."  •  At  all  events,  it  is  unfair  to  charge  me  with  any  motive 
of  lucre  or  malice. 

It  is  not  proposed  by  those  who  think  as  I  do  that  any  corporation 
shall  lose  one  atom  of  its  property.  A  lawful  contract  between  a  rail 
road  company  and  the  State  is  inviolable,  and  must  not  be  touched  by 
hostile  hands,  however  bad  the  bargain  may  have  been  for  the  people. 
Mr.  Gowen,  and  all  others  with  similar  contracts  in  their  hands,  are 
entitled  each  to  his  pound  of  flesh,  and,  if  it  be  "  so  nominated  in  the 
bond,"  the  Commonwealth  must  bare  her  bosom  to  all  their  knives 
and  let  them  "cut  nearest  the  heart." 

But  we,  the  people,  have  rights  of  property  as  well  as  the  corpora 
tions,  and  ours  are — or  at  least  they  ought  to  be — as  sacred  as  theirs. 
Between  the  great  domain  which  we  have  conceded  to  them,  and  that 
which  still  belongs  to  us,  the  line  is  plainly  and  distinctly  marked,  and 
if  they  cross  it  for  purposes  of  plunder  they  should  be  driven  back 
under  the  lash  of  the  law.  It  is  not  the  intent  of  the  amended  Con 
stitution,  nor  the  desire  of  those  who  demand  its  enforcement,  to  do 
them  the  slightest  injury.  We  only  ask  for  that  impartial  and  just 
protection  which  the  State,  as  parens  patrice,  owes  to  us  not  less  than 
to  them. 

In  the  first  place,  it  will,  I  think,  be  admitted  by  all  impartial 
persons  of  average  intelligence,  that  the  companies  are  not  the  owners 


MISCELLANEOUS.  173 

of  the  railroads.  The  notion  that  they  are  is  as  silly  as  it  is  pernicious. 
It  is  the  duty  of  every  commercial,  manufacturing,  or  agricultural 
state  to  open  thoroughfares  of  trade  and  travel  through  her  territory. 
For  that  purpose  she  may  take  the  property  of  citizens  and  pay  for  the 
work  out  of  her  treasury.  When  it  is  done,  she  may  make  it  free  to 
all  comers,  or  she  may  reimburse  the  cost  by  levying  a  special  tax  upon 
those  who  use  it ;  or  she  may  get  the  road  built  and  opened  by  a  cor 
poration  or  an  individual,  and  pay  for  it  by  permitting  the  builder  to 
collect  tolls  or  taxes  from  those  who  carry  and  travel  on  it.  Pennsyl 
vania  has  tried  all  these  methods  with  her  turnpikes,  canals,  and  rail 
roads.  Some  have  been  made  at  her  own  cost  and  thrown  open ;  on 
others,  made  by  herself,  she  placed  officers  to  collect  a  special  tax ; 
others  have  been  built  for  her  by  contract,  in  which  some  natural  or 
artificial  person  agreed  to  do  the  work  for  the  privilege  of  appropriat 
ing  the  taxes  which  she  authorized  to  be  levied. 

But  in  all  these  cases  the  proprietary  right  remained  in  the  State, 
and  was  held  by  her  in  trust  for  the  use  of  the  people. 

Those  who  run  the  railroads  and  canals  are  always  public  agents. 
It  is  impossible  to  look  at  them  in  any  other  light,  or  to  conceive  how 
a  different  relation  could  exist ;  because  a  railroad,  which  is  not  man 
aged  by  public  agents,  can  not  be  a  public  highway.  The  character 
of  these  agents  and  the  mode  of  their  appointment,  even  upon  the 
same  work,  have  differed  materially.  The  Columbia  Railroad,  and  all 
the  canals,  were  for  a  time  under  the  management  of  officers  appointed 
by  the  Governor,  or  elected  by  the  people,  and  paid  out  of  the  State 
Treasury.  Afterward  the  duty  was  devolved  by  the  State  upon  per 
sons  associated  together  under  acts  of  incorporation  who  contracted  to 
perform  it  upon  certain  terms.  The  Erie  and  Northeast  Railroad 
was  at  first  run  for  the  State  by  a  company  ;  the  company  was  removed 
from  its  trust  for  misbehavior;  the  Governor  then  took  it  and  ap 
pointed  an  officer  to  superintend  the  work ;  later  the  Governor's  ap 
pointee  was  displaced,  with  the  consent  of  the  Legislature,  and  the 
duty  was  again  confided  to  a  corporation  newly  chartered. 

None  of  these  agents — neither  the  canal  commissioners  nor  the 
State  Receiver,  nor  any  corporation  that  went  before  or  came  after — 
had  the  slightest  proprietary  right  or  title  to  the  railroads  themselves. 
To  say  that  they  had  would  be  as  preposterous  as  to  assert  that  town 
ship  roads  are  the  private  property  of  the  supervisors. 

The  legal  relations  existing  between  the  State  and  the  persons 
whom  she  authorizes  to  supervise  her  highways  was  somewhat  elabo 
rately  discused  by  the  Supreme  Court  of  Pennsylvania  in  the  case  of 
the  Erie  and  N.  E.  R.  R.  Co.  vs.  Casey  (2  Casey,  pp.  307-324).  It 
was  there  determined  that  a  railroad  built  by  authority  of  the  State 
for  the  general  purposes  of  commerce  is  a  public  highway,  and  in  no 
sense  private  property — that  a  corporation  authorized  to  run  it  is  a 


1Y4  MISCELLANEOUS. 

servant  of  the  State  as  much  as  an  officer  legally  appointed  to  do  any 
other  public  duty,  as  strictly  confined  by  the  laws,  and  as  liable  to  be 
removed  for  transgressing  them. 

All  the  judges  concurred  in  this  opinion.  The  two  who  dissented 
from  the  judgment  did  so  on  the  technical  ground  that  certain  circum 
stances,  which  would  have  estopped  the  State  in  a  judicial  proceed 
ing,  disarmed  the  Legislature  of  the  power  to  repeal.  Neither  they 
nor  any  other  judge  in  this  country,  whose  authority  is  worth  a  straw, 
ever  denied  the  doctrine  for  which  I  have  here  cited  that  case,  though 
it  may  have  been  sometimes  overlooked,  ignored,  or  perchance  evaded. 
This  principle  and  no  other  was  the  basis  of  the  decision  in  Pennsyl 
vania  and  all  the  other  States,  that  cities  and  counties  might  issue 
bonds  or  their  money  and  tax  their  people  to  aid  in  building  railways. 
The  Supreme  Court  of  the  United  States  has  affirmed  it  in  scores  of 
cases.  It  was  so  universally  acknowledged  that  the  Convention  of  1873 
incorporated  it  into  the  Constitution  as  a  part  of  the  fundamental  law. 
I  do  not  know  upon  what  foundation  more  solid  than  this  any  great 
principle  of  jurisprudence  was  ever  established  in  a  free  country. 
When,  in  addition,  you  consider  the  reason  of  the  thing,  and  the 
supreme  necessity  of  it  for  the  purposes  of  common  justice,  it  seems 
like  a  sin  and  a  shame  and  a  scandal  to  oppose  it. 

It  being  settled  that  the  railroads  and  canals  belong  of  right  to  the 
State  for  the  use  of  the  people,  and  that  the  corporations  who  have 
them  in  charge  are  mere  agents  to  run  them  for  the  owners,  it  will 
surely  not  be  denied  that  all  proper  regulations  should  be  made  to  pre 
vent  those  agents  from  betraying  their  trust.  The  wisdom  is  very 
plain  of  those  provisions  in  our  Constitution  which  put  them  on  a 
level  with  other  public  servants,  and  forbid  them  to  prostitute  their 
functions  to  purposes  merely  mercenary,  or  to  engage  in  any  business 
which  necessarily  brings  their  private  interests  into  conflict  with  their 
public  duty.  Seeing  the  vast  magnitude  of  the  affairs  intrusted  to 
them,  and  the  terrible  temptation  to  which  their  cupidity  is  exposed, 
it  is  certainly  necessary  that  you  hold  them  to  their  responsibilities, 
and  hold  them  hard. 

But,  on  the  other  hand,  the  corporations  deny  that  they  owe  any 
responsibility  to  the  State,  more  than  individuals  engaged  in  private 
business.  They  assert  that  the  management  of  the  railroads  being  a 
mere  speculation  of  their  own,  these  thoroughfares  of  trade  and  travel 
must  be  run  for  their  interest  without  regard  to  public  right.  If  they 
take  advantage  of  their  power  to  oppress  the  labor  and  overtax  the 
land  of  the  State  ;  if  they  crush  the  industry  of  one  man  or  place  to 
build  up  the  prosperity  of  another  ;  if  they  plunder  the  rich  by  extor 
tion,  or  deepen  the  distress  of  the  poor  by  discriminating  against  them, 
they  justify  themselves  by  showing  that  all  this  was  in  the  way  of 
business  ;  that  their  interest  required  them  to  do  it ;  that  if  they  had 


MISCELLANEOUS.  1T5 

done  otherwise  their  fortunes  would  not  have  been  so  great  as  they 
are  ;  that  it  was  the  prudent,  proper,  and  successful  method  of  man 
aging  their  own  affairs.  This  is  their  universal  answer  to  all  com 
plaints.  Their  protests  against  legislative  intervention  to  protect  the 
public  always  take  this  shape,  with  more  or  less  distinctness  of  out 
line.  In  whatever  language  they  clothe  their  argument,  it  is  the  same 
in  substance  as  that  with  which  Demetrius,  the  silversmith,  defended 
the  sanctity  of  the  temple  for  which  he  made  shrines,  "  Sirs,  ye  know 
that  by  this  craft  we  have  our  wealth." 

That  railroad  corporators  and  their  paid  adherents  should  take  this 
view  of  the  subject  is  perhaps  not  very  surprising.  Nor  does  it  excite 
our  special  wonder  to  see  them  supported  by  the  subsidiary  rings  whom 
they  patronize.  But,  it  is  amazing  to  find  that  this  odious  and  de 
moralizing  theory  has  made  a  strong  lodgment  in  the  minds  of  disin 
terested,  upright,  and  high-placed  men.  Two  members  of  the  Senate 
Judiciary  Committee — I  do  not  say  the  ablest,  because  comparisons 
are  odious — but  they  are  both  of  them  among  the  foremost  men  of  the 
country  for  talents  and  integrity — these  gentlemen  emphatically  dis 
sented  from  me  when  I  asserted  that  the  management  of  the  railroads 
was  not  a  matter  of  business  to  be  conducted  like  a  private  enterprise, 
merely  for  the  profit  of  the  directors  or  stockholders.  A  heresy  so 
supported  is  entitled  to  serious  refutation,  however  absurd  it  may  seem 
on  its  face. 

1  aver  that  a  man  or  a  corporation  appointed  to  do  a  public  duty 
must  perform  it  with  an  eye  single  to  the  public  interest.  If  he  per 
verts  his  authority  to  purposes  of  private  gain  he  is  guilty  of  corrup 
tion,  and  all  who  aid  and  abet  him  are  his  accomplices  in  crime.  He 
defiles  himself  if  he  mingles  his  own  business  with  that  intrusted  to 
him  by  the  government,  and  uses  one  to  promote  the  other.  If  a  judge 
excuses  himself  for  a  false  decision  by  saying  that  he  sold  his  judg 
ment  for  the  highest  price  he  could  get,  you  cover  his  character  with 
infamy.  A  ministerial  officer,  like  a  sheriff,  for  instance,  who  extorts 
from  a  defendant,  or  even  from  a  convict  in  his  custody,  what  the  law 
does  not  allow  him  to  collect,  and  puts  the  surplus  in  his  pocket,  is  a 
knave  upon  whom  you  have  no  mercy.  You  send  county  commission 
ers  to  the  penitentiary  for  consulting  their  own  financial  advantage  to 
the  injury  of  the  general  weal.  When  the  officers  of  a  city  corporation 
make  a  business  of  running  it  to  enrich  themselves  at  the  expense  of 
the  public,  you  can  see  at  a  glance  that  they  are  the  basest  of  crimi 
nals.  Why,  then,  can  you  not  see  that  the  officers  of  a  railway  cor 
poration  are  equally  guilty  when  they  pervert  the  authority  with  which 
they  are  clothed  to  purposes  purely  selfish  ?  A  railroad  corporation 
is  a  part  of  the  civil  government  as  much  as  a  city  corporation.  The 
officers  of  the  former  as  much  as  the  latter  are  agents  and  trustees  of 
the  public,  and  the  public  has  an  interest  precisely  similar  in  the 


176  MISCELLANEOUS. 

fidelity  of  both.  Why,  then,  should  partiality  or  extortion  be  con 
demned  as  criminal  in  one  if  it  be  tolerated  as  fair  business  when  prac 
ticed  by  the  other  ?  Yet  there  are  virtuous  and  disinterested  statesmen 
among  us  who  think  that  faithful  service  ought  not  to  be  enforced 
against  the  railroad  companies,  however  loudly  it  may  be  claimed  by 
the  body  of  the  people  as  their  just  due,  and  no  matter  how  distinctly 
it  may  be  commanded  by  the  Constitution  itself. 

I  am  able  to  maintain  that  all  the  corruption  and  misgovernment 
with  which  the  earth  is  cursed,  grows  out  of  this  fatal  proclivity  of 
public  servants  to  make  a  business  of  their  duty.  Eecall  the  worst 
cases  that  have  occurred  in  our  history,  and  see  if  every  one  of  them 
does  not  finally  resolve  itself  into  that.  Tweed  and  his  associates  in 
New  York  ;  the  Philadelphia  rings  ;  the  carpet-bag  thieves  ;  the  Star 
Eoute  conspirators — all  went  into  business  for  themselves  while  pre 
tending  to  be  engaged  in  the  public  service.  Oakes  Ames  distributed 
the  stock  of  the  Credit  Mobilier  where  he  thought  it  would  do  the 
most  good  to  himself  and  others  with  whom  he  was  connected,  and 
that  was  business  in  him  who  gave  and  in  them  that  took  his  bribes. 
Madison  Wells,  when  he  proposed  to  Mr.  Kenner  that  he  would  make 
a  true  return  of  the  election  if  he  could  be  assured  of  getting  "  two 
hundred  thousand  dollars  apiece  for  himself  and  Jim  Anderson,  and 
a  less  sum  for  the  niggers,"  had  as  keen  an  eye  to  business  as  if  he  had 
been  president  of  a  railroad  company,  instead  of  a  returning  board. 
Certain  greedy  adventurers  made  it  a  business  to  rob  the  nation  of  its 
lands,  and  uniting  with  Congress  carried  it  on  so  magnificently  that 
they  got  away  with  an  area  nearly  equal  to  nine  States  as  large  as  Penn 
sylvania.  The  imposition  of  the  whisky-tax,  excluding  what  was  held 
on  speculation,  was  business  to  the  officers  and  legislators  who  were 
sharp  enough  to  anticipate  their  own  votes.  You  will  see  on  reflection 
that  every  base  combination  which  officers  have  made  with  one  another, 
or  with  outside  parties,  has  been  a  business  arrangement,  precisely 
like  that  which  the  railroads  justify  on  the  sole  ground  that  it  is 
business.  The  effect  is  not  only  to  corrupt  those  who  engage  in  such 
transactions,  but  to  demoralize  all  who  are  tempted  by  personal  and 
party  attachments  to  apologize  for  it. 

When  the  officers  of  the  Pennsylvania  Railroad  Company  corruptly 
bought  the  remission  of  the  tonnage  tax,  and  thereby  transferred  to 
their  own  pockets  an  incalculable  sum  justly  due  to  the  State,  it  was 
business,  rich  to  them  and  profitable  beyond  the  dreams  of  avarice, 
while  to  the  swindled  tax-payers  it  was  proportionably  disastrous. 
The  nine  million  steal  of  later  date  was  a  business  enterprise  which 
failed  because  Governor  Geary  most  unexpectedly  put  his  veto  upon 
it.  Still  more  recently  the  same  corporation  undertook  to  get  from 
the  Treasury  of  the  State  four  millions  of  dollars  to  which  it  had  no 
decent  pretense  of  a  claim.  Never  was  any  affair  conducted  in  a  more 


MISCELLANEOUS.  177 

perfectly  business-like  way.  The  appointed  agents  of  the  corporation 
came  to  Harrisburg  when  the  Legislature  was  in  session,  and  regularly 
set  up  a  shop  for  the  purchase  of  members  at  prearranged  and  specified 
prices.  You  condemn  this  piece  of  business  because  it  was  dishonest, 
but  was  it  more  dishonest  than  that  which  the  same  corporation  ha 
bitually  does  when  it  stands  on  the  highway,  and  by  fraud  or  force  ex 
torts  from  individual  citizens  a  much  larger  sum  in  excessive  tolls  to 
which  its  right  is  no  better  than  to  the  money  it  tried  to  get  by  bribery  ? 

The  functions  of  railroad  -corporations  are  as  clearly  defined  and 
ought  to  be  as  universally  understood  as  those  of  any  servant  which 
the  State  or  General  Government  employs.  Without  proprietary  right 
in  the  highways  they  are  appointed  to  superintend  them  for  the  own 
ers.  They  are  charged  with  the  duty  of  seeing  that  every  needed 
facility  for  the  use  of  those  thoroughfares  shall  be  furnished  to  all  citi 
zens,  like  the  justice  promised  in  Magna  Charta,  without  sale,  denial, 
or  delay.  Such  services,  if  faithfully  performed,  are  important  and 
valuable,  and  the  compensation  ought  to  be  a  full  equivalent ;  accord 
ingly,  they  are  authorized  to  pay  themselves  by  levying  upon  all  who 
use  the  road  a  tax  or  toll  or  freight  sufficient  for  that  purpose. 

But  this  tax  must  be  reasonable,  fixed,  certain,  and  uniform,  oth 
erwise  it  is  a  fraud  upon  the  people  which  no  department  of  the  State 
government,  nor  all  of  them  combined,  has  power  to  legalize. 

It  is  much  easier  to  see  the  nature  and  character  of  the  mischief 
wrought  by  the  present  practices  of  the  railroad  companies  than  it  is 
to  calculate  its  extent.  If  your  action  depends  in  any  degree  upon 
the  amount  of  the  spoliation  which  the  people  of  the  State  have  suf 
fered,  and  are  now  suffering,  for  want  of  just  laws  to  protect  them, 
you  certainly  ought  to  direct  an  official  inquiry  into  the  subject  and 
ascertain  the  whole  truth  as  nearly  as  possible. 

But  investigations  have  already  taken  place  in  Congress  and  the 
Legislatures  of  several  States  ;  complaints  founded  upon  specified 
facts  come  up  from  every  quarter ;  verified  accusations  are  made  by 
some  of  the  companies  against  others  ;  railroad  men  have  openly  con 
fessed  their  fraudulent  practices,  and  sometimes  boasted  of  the  large 
sums  they  accumulate  by  them.  Putting  these  together,  you  can 
form  at  least  an  approximate  calculation.  I  doubt  not  you  will  find 
the  sum  total  of  the  plunder  they  have  taken  in  the  shape  of  excessive 
charges  to  be  frightful. 

Three  or  four  years  ago  a  committee  of  the  United  States  Senate 
collected  the  materials,  and  made  a  report  upon  this  general  subject, 
in  which  they  showed  that  an  excess  of  five  cents  per  hundred- weight 
charged  on  the  whole  agricultural  crop  of  the  then  current  year, 
would  amount  to  seventy  million  dollars.  Upon  the  crop  of  the  last 
year  it  would  doubtless  come  nearer  a  hundred  millions.  The  railroads 
would  not  get  this  sum,  because  not  near  all  of  it  is  carried,  but  it 

12 


178  MISCELLANEOUS. 

would  operate  as  an  export  tax  operates  ;  that  is  to  say,  the  producer, 
the  consumer,  or  the  intermediate  dealer,  would  lose  that  amount  on 
the  whole  crop,  carried  or  not  carried.  In  1880  the  charges  from 
Chicago  to  the  Eastern  markets  were  raised  from  ten  cents  per  hundred 
weight  to  thirty-five  cents,  the  latter  rate  being  unquestionably  twice 
as  high  as  a  fair  one.  You  can  count  from  these  data  the  terrible  loss 
sustained  by  the  land,  labor,  and  trade  of  the  country.  It  was  the  end 
and  the  attainment  of  a  combination  still  subsisting  between  the  great 
trunk  lines,  as  they  are  called,  to  pool  their  receipts,  to  stop  all  com 
petition,  to  unite  the  stealing  power  of  all  into  one  grand  monopoly, 
and  put  the  whole  people  at  their  mercy.  It  was  a  criminal  conspir 
acy  by  the  common  and  statute  law  of  all  the  States. 

The  magnitude  of  these  excessive  charges  is  not  the  worst  thing 
about  them.  The  corporations  think  it  perfectly  right  to  raise  or 
lower  the  freight  as  they  please  without  regard  to  the  rights  or  inter 
est  of  anybody  but  themselves.  A  grain-grower,  manufacturer,  miner, 
or  merchant,  who  can  sell  his  goods  at  a  profit,  if  he  can  get  them  car 
ried  at  the  rates  of  to-day,  may  find  himself  ruined  to-morrow  by  an 
increase  which  did  not  enter  into  his  calculations.  A  rise  in  the  mar 
ket  inures  not  to  the  benefit  of  the  producer,  but  to  the  use  of  the 
carrying  corporations,  which  openly  avow  that  their  rule  is  to  charge 
in  all  cases  as  much  "  as  the  traffic  will  bear  "  ;  that  is  to  say,  as  much 
as  the  shipper  can  submit  to  without  being  driven  entirely  off  the 
road.  You  must  see  plainly  that  this  power  to  depress  agriculture,  to 
diminish  the  profits  of  manufacturing  industry,  and  to  skin  the  com 
merce  of  the  whole  country  by  the  arbitrary  use  of  a  sliding  scale 
upon  freights,  can  not  safely  be  trusted  to  human  hands,  and  espe 
cially  not  to  irresponsible  corporations  whose  interest,  as  well  as  their 
acknowledged  principle  of  action,  constantly  impel  them  to  abuse  it. 
Can  it  be  that  a  Pennsylvania  Legislature  will  hesitate  to  curb  the 
career  of  this  destructive  monopoly  by  adjusting  the  charges  according 
to  some  rule  equitable,  fixed,  and  certain  ? 

But  even  this  sinks  into  insignificance  compared  with  the  wrong  and 
evil  of  their  discriminations.  Common  justice,  sound  policy,  every 
sense  of  duty,  the  whole  spirit  and  letter  of  the  law,  require  them  to 
give  every  man  equal  facilities  in  the  use  of  the  roads,  and  to  charge 
them  at  the  same  rates  for  the  same  class  of  goods,  according  to 
weight  and  distance.  There  can  be  no  possible  doubt  about  this. 
Every  unprejudiced  man,  who  has  sense  enough  to  know  his  right  hand 
from  his  left,  acknowledges  that  equality  must  be  the  rule  of  right ; 
and  he  understands  this  perfectly  well  without  looking  at  the  Con 
stitution,  where  it  is  solemnly  declared  to  be  part  of  the  lex  legum,  the 
law  of  laws,  and  the  rule  of  all  rules  on  the  subject.  Yet  this  sacred 
principle  is  constantly  and  steadily  violated,  trampled  under  foot,  and 
treated  with  heartless  contempt. 


MISCELLANEOUS.  179 

At  the  slightest  glance  you  will  see  the  enormous  injury,  direct 
and  consequential,  which  these  discriminations  inflict  upon  the  public. 
A  man  who  invests  his  capital,  or  employs  his  time  in  mining  or  man 
ufacturing,  can  be  driven  into  bankruptcy  at  any  time  by  a  discrimi 
nation  against  him,  and  in  favor  of  his  competitors.  This  is  done 
every  day,  and  all  the  time,  not  in  a  few  cases  here  and  there,  but  sys 
tematically  and  regularly,  whenever  a  carrying  monopoly  conceives 
that  its  own  interests  can  be  promoted  in  that  nefarious  way,;  and  it 
will  continue  to  be  done  until  the  prohibition  of  the  Constitution  is 
enforced  by  penal  enactment. 

Instead  of  breaking  the  foul  bulk  of  these  enormities,  I  will  give 
you  a  sample — convenient,  because  it  is  small  and  easily  handled.  A 
neighbor  and  friend  of  mine  (in  partnership  with  another)  became  the 
lessee  and  operator  of  a  coal-mine  in  Northumberland.  For  a  short 
distance  they  were  obliged  to  carry  their  product  over  one  of  the 
branches  of  the  Pennsylvania  Company  ;  they  were  charged  for  the  use 
of  the  road  and  motive-power  alone — there  was  no  loading  or  unload 
ing  in  the  case,  and  no  cars  were  furnished  by  the  company — at  about 
the  rate  of  twenty  cents  per  ton  per  mile  ;  while  others  whom  the  monop 
oly  chose  to  favor  were  let  off  at  two  cents.  They  paid  the  excess 
under  protest,  and  brought  suit  to  recover  it  back.  It  was  as  simple 
a  case  of  extortion  as  can  be  conceived  ;  but  certain  officers  of  the 
Pennsylvania  Railroad  Company  swore  that  in  their  judgment  it  was 
right  to  commit  it,  and,  moreover,  declared  that  it  was  a  usual,  common, 
and  customary  practice.  I  blush  to  acknowledge  that  in  all  this  the 
Supreme  Court  indorsed  and  abetted  the  corporation.  The  dialectics 
of  the  decision  turned  on  a  prohibition  in  the  charter  against  charg 
ing  more  on  an  average  than  four  cents  per  ton  per  mile — which  was 
construed  as  a  legal  warrant  for  any  robbery  of  one  person  which 
the  company  could  prove  to  be  balanced  by  the  aggregate  of  favors 
shown  to  all  others.  But  neither  the  greatest  corporation  in  the 
State,  nor  the  highest  judicial  tribunal,  paid  any  respect  whatever  to 
the  principle  that  all  men's  rights  to  the  use  of  the  public  highway 
are  equal. 

It  is  known  and  not  denied  that  this  equality  of  right  (sacred  and 
fundamental  though  it  be)  is  by  the  common  practice  of  carrying 
companies  corruptly  disregarded. 

If  you  want  to  drive  business  competition  out  of  the  field,  bribe  a 
railroad  manager  to  raise  the  freights  upon  your  rivals  and  lower  your 
own,  or  take  the  whole  board  of  directors  into  partnership  with  you, 
or  promise  to  divide  the  spoils  with  the  corporation,  and  they  will 
make  you  a  monopoly  with  power  to  plunder,  limited  only  by  the 
range  of  your  dealings.  The  loss  thus  inflicted  upon  the  worthiest 
men  in  the  land  is  startlingly  large.  By  a  single  one  of  these  arrange 
ments — that  with  the  Standard  Oil  Company — the  estimated  injury, 


180  MISCELLANEOUS. 

direct  and  consequential,  to  honest  persons  within  the  State,  amounts 
to  not  less  than  a  hundred  and  fifty  million  dollars.  Eor  this  fact 
you  have  the  statement  of  Mr.  Gowen,  whose  veracity  no  man  that 
knows  him  will  doubt,  and  whose  faculties  of  observation,  sharpened  by 
a  personal  interest  in  the  subject,  make  him  a  most  intelligent  wit 
ness. 

At  whatever  place  one  of  these  railroad  corporations  has  power  to 
control  the  whole  carrying-trade,  or  where  several  combine  together  for 
that  purpose,  they  victimize  the  people  remorselessly.  I  give  you  the 
example  of  York  for  the  reason  that  it  presses  itself  on  my  own  atten 
tion  with  peculiar  force.  The  freight  exacted  on  the  single  article  of 
anthracite  coal  is  nearly  one  dollar  per  ton  more  than  is  charged  upon 
the  same  commodity  carried  from  the  same  mine  and  delivered  by  the 
same  company  at  Baltimore.  In  all  reason  and  conscience  it  should 
be  from  fifty  cents  to  a  dollar  less,  seeing  that  the  distance  is  sixty 
miles  greater  to  Baltimore.  That  makes  the  discrimination  against 
York  at  least  equal  to  a  dollar  and  a  half  on  every  ton.  The  quantity 
consumed  in  the  latter  place  is  something  upward  of  a  hundred  thou 
sand  tons  ;  and  the  excessive  tax  upon  it  all  is  therefore  one  hundred 
and  fifty  thousand  dollars.  Every  cent  of  this  is  as  wrongfully  taken 
as  if  it  were  feloniously  stolen.  It  amounts  to  many  times  as  much  in 
the  aggregate  as  all  the  legitimate  taxes  which  the  same  community 
pay  for  the  support  of  the  State,  county,  schools,  and  almshouses. 
Nay,  it  is  more  than  all  the  taxes  imposed  for  those  purposes  on  the 
whole  of  the  great  county  in  which  the  town  of  York  is  situated.  A 
manufacturer  there  who  uses  two  thousand  tons  of  coal  per  annum 
must  pay  three  thousand  dollars  of  black-mail  to  the  railroads,  or  to 
the  monopoly  which  they  have  created,  unless  the  influence  of  his 
wealth  gets  it  remitted.  But  the  largest  part  of  it  is  levied  upon  poor 
laborers  whose  wages  are  barely  sufficient  to  furnish  their  families,  in 
scanty  measure,  with  food,  shelter,  and  clothing ;  much  of  it  is  paid 
by  the  contributions  of  charity  for  those  who  would  otherwise  perish 
by  cold  and  hunger.  The  man  who  can  hear  the  simple  story  of  this 
wrong  without  indignation  must  be  as  cold-blooded  as  a  snake. 

You  need  not  confine  your  sympathies  to  York.  I  can  give  you 
no  exact  account  of  the  similar  suffering  inflicted  on  Philadelphia. 
But  any  officer  of  the  Reading  Company  can  furnish  it.  Mr.  Gowen, 
free  spoken  as  he  is  about  the  sins  of  his  rivals,  is  naturally  reticent 
concerning  his  own.  But  if  he  opens  his  mouth  he  will  tell  you  the 
truth  ;  and,  unless  I  am  much  mistaken,  it  will  be  an  awful  tale  of 
wrong  and  oppression. 

A  full  inquiry,  if  it  shall  ever  be  instituted,  will  probably  show 
that  nearly  all  the  railroad  corporations — the  smaller  ones  following 
the  example  of  the  greater — have  violated  their  charters  by  engaging 
"  in  mining  and  manufacturing  articles  for  transportation  over  their 


MISCELLANEOUS.  181 

own  works,"  and  thus  acquired  a  monopoly  of  the  production  as  well 
as  the  carrying.  It  is  in  this  way  that  the  Reading  Company  has  got 
the  coal-market  of  Philadelphia  under  its  foot.  Why  should  not  that 
corporation  and  the  others  be  made  to  respect  the  majesty  of  justice 
by  an  enforcement  of  the  Constitution  (Section  5,  Article  XVII),  which, 
if  it  leaves  them  what  they  have  already  got  in  violation  of  law,  will  at 
least  prevent  or  punish  such  outrages  in  the  future  ? 

The  imperious  necessity,  however,  of  enforcing  the  Constitution 
arises  out  of  the  depredations  which  they  commit  upon  all  classes 
everywhere  within  the  State,  in  what  they  call  their  local  rates.  You 
can  take  the  figures  known  to  be  true  and  demonstrate  by  the  plainest 
process  of  simple  arithmetic  that  their  tariff  of  rates  for  carrying 
goods  from  place  to  place  within  the  State  is  extortionate  beyond  all 
reason. 

They  have  not  the  face  to  deny  that  their  through  rates  are  high 
enough  to  give  them  all  the  compensation  they  can  reasonably  demand 
for  that  part  of  their  service.  The  trunk  lines  struggled  and  fought 
for  that  trade  against  one  another  with  a  fierceness  which  showed  that 
they  regarded  it  as  very  profitable.  Their  own  competition  reduced 
it  for  a  while,  but  they  combined  and  raised  their  charges  high  enough 
to  satisfy  all  of  them.  It  is  ridiculous  to  say  that  this  mutual  agree 
ment  fixed  the  rates  below  a  fair  standard.  That  is  a  sort  of  error 
which  monopolists  never  commit.  Accepting  the  almost  unanimous 
testimony  of  disinterested  persons  who  ought  to  know  whereof  they 
affirm,  the  belief  is  fully  authorized  that  they  have  fixed  their  through 
rates  unreasonably  high  ;  but  we  will  assume  that  they  are  only  fair. 
That  point  being  satisfactorily  established,  it  follows,  as  the  day  follows 
the  night,  that  the  much  higher  rates  which  they  charge  on  local 
freights  are  unjust  and  extortionate,  a  palpable  violation  of  our  rights, 
a  gross  offense  against  the  Constitution. 

I  use  the  word  rate  in  the  popular  and  legal  sense,  as  meaning  the 
ratio  or  proportion  of  the  whole  charge  to  the  distance  the  freight  is 
carried.  Thus,  if  a  ton  be  carried  six  hundred  miles  from  Chicago  to 
Philadelphia  for  five  dollars,  and  the  same  charge  be  made  for  carrying 
it  twelve  miles  from  Philadelphia  to  Media,  the  rate  in  the  latter  case 
is  fifty  times  as  high  as  in  the  former.  I  am  credibly  informed  that 
such  disproportioned  charges  are  or  have  recently  been  made,  and  that 
as  a  general  rule  all  local  freights,  whether  the  haul  be  long  or  short, 
are  charged,  without  regard  to  distance,  the  same,  or  nearly  the  same, 
that  would  be  charged  on  the  same  weight  if  carried  from  Chicago  to 
Boston.  To  the  extent  of  this  enormous  discrimination  against  our 
own  people  they  are  robbed  and  plundered. 

The  effect  of  it  upon  the  agricultural  interest  can  not  be  ascertained 
exactly  without  an  investigation,  which  you  can  make,  and  I  can  not ; 
but  the  reasonable  probability  is  that  it  takes  most  unjustly  from  seven 


182  MISCELLANEOUS. 

to  ten  cents  per  bushel  from  the  price  of  all  grain  grown  in  the  State, 
and  correspondingly  reduces  the  value  of  all  other  products. 

Then  look  how  it  touches  the  rights  and  interests  of  consumers  in 
the  great  centers  of  population.  Within  a  circle  of  one  hundred  and 
fifty  miles  in  diameter  around  Philadelphia,  provisions  enough  might 
be  raised  to  feed  the  city ;  but  they  can  not  be  taken  there  without 
paying  a  freight  on  them  as  heavy  as  it  would  cost  to  bring  them  from 
Illinois  or  Wisconsin.  Thus  an  army  of  a  million  souls,  some  of  them 
half  mad  with  hunger,  virtually  have  their  base  of  supplies  moved  back 
six  or  seven  hundred  miles  away. 

These  railroad  men  have  another  way  of  cheating  the  public  ;  not 
for  the  benefit  of  their  corporate  treasuries,  but  to  swell  the  private 
fortunes  of  the  managers.  A  ring  of  them  is  formed  into  a  separate 
transportation  company,  with  the  privilege  of  carrying  on  their  own 
roads  at  the  highest  freights  they  can  extort.  By  means  of  preferences 
and  discriminations,  the  parent  corporation  forces  into  the  hands  of 
its  bastard  offspring  as  much  of  the  business  as  it  wants  ;  for  the  ship 
per  who  refuses  to  patronize  the  ring  must  suffer  the  penalty  of  still 
higher  rates  as  well  as  delay  and  difficulty.  The  Convention  of  1873 
believed  that  this  was  one  of  the  devices  for  fleecing  the  trade  of  the 
Commonwealth  which  ought  to  be  broken  up,  and  the  people  adopted 
that  opinion.  Do  you  wish  to  continue  it  ?  If  not,  why  do  you  hesi 
tate  to  carry  out  the  constitutional  prohibition  ? 

Perhaps  the  most  remarkable,  certainly  the  boldest  thing  about  the 
discriminations  we  complain  of,  is  that  they  are  always  avowedly  made 
against  those  who  are  least  able  to  endure  the  wrong.  A  heavy  grain- 
dealer  in  the  West,  who  ships  his  millions,  may  get  rates  ninety  per 
cent  below  those  extorted  from  a  Pennsylvania  farmer,  with  only  a 
thousand  bushels  to  carry.  Between  all  rivals  of  unequal  fortune,  the 
railway  king  is  ever  strong  upon  the  stronger  side,  and  never  fails  to 
make  his  discrimination  against  the  weaker  concern  whose  business  is 
conducted  on  the  smaller  scale.  In  my  town  of  York  the  demand  of 
some  very  rich  manufacturers  for  lower  rates  has  been  conceded  with 
gratifying  promptness  ;  but  you  might  as  well  plead  pity  with  a  wolf  as 
ask  the  monopoly  to  relieve  a  starving  laborer  by  taking  the  excessive 
charges  off  his  bread  and  fuel.  Indeed,  if  the  tariffs  of  railway  charges 
be  founded  in  any  rule  at  all  it  is  this  :  That  all  rates  shall  be  high  in 
inverse  proportion  to  the  magnitude  of  the  cargo  and  the  distance  it 
is  carried ;  the  practical  effect  of  which  is  to  grind  the  face  of  the 
small  trader  that  the  great  one  may  increase  in  fatness. 

The  only  argument  they  make  against  the  equality  of  rates  com 
manded  in  the  Constitution  is  that  they  can  not  afford  it ;  that  they 
must  charge  higher  for  short  hauls  and  light  loads,  or  else  their  com 
pensation  will  be  less  than  for  the  greater  service.  If  this  were  true, 
it  would  be  no  ground  of  justification.  But,  in  point  of  fact,  it  is 


MISCELLANEOUS.  183 

wholly  untrue.  It  is  not  more  difficult  or  costly  to  carry  a  hundred 
tons  for  fifty  shippers  than  it  would  be  to  carry  the  same  goods  for 
one.  The  expenses  incident  to  the  reception  and  discharge  of  a  cargo 
may  be  greater  in  proportion  for  short  hauls  than  for  long  ones,  but 
you  can  make  that  all  even  by  allowing  them  to  charge  in  addition  to 
their  mileage,  for  loading  and  unloading,  whether  the  haul  be  short 
or  long.  These  terminal  expenses  which  they  make  so  much  ado 
about  are  nothing  as  an  excuse  for  the  enormous  excesses  of  their  local 
rates,  and  they  know  that  very  well.  Their  real  reason  is  that  they 
find  it  easier,  safer,  and  more  profitable  to  cheat  a  thousand  poor  men 
than  one  who  is  powerful  enough  to  resist  them,  or  rich  enough  to 
bribe  them. 

But  they  insist  that  they  have  a  chartered  right  to  do  these  things  ; 
that  they  have  purchased  from  the  State  the  privilege  of  charging  un 
reasonable  tolls,  and  making  such  discriminations  as  they  think  best 
for  themselves  without  regard  to  justice  ;  that  the  State  has  sold  out 
to  them  the  power  of  protecting  the  people  against  any  wrong  of  that 
kind  which  they  may  choose  to  commit,  and  that  the  Constitution 
which  forbids  them  is  itself  unconstitutional,  because  it  impairs  the 
obligation  of  a  contract.  Let  us  see  whether  there  be  or  not  any  truth 
in  this  plea. 

If  the  State  had  in  express  terms  authorized  them  to  impose  un 
reasonable  tolls  or  taxes  upon  the  people  for  the  use  of  their  own  roads, 
the  grant  would  be  void.  Judge  Baldwin's  opinion  to  that  effect  in 
Bonaparte  vs.  The  Camden  and  Amboy  Railroad  Company  has  never 
been  denied  or  its  soundness  doubted  from  the  day  it  was  delivered  to 
the  present  time.  To  give  the  corporation  a  power  like  that  would 
be  to  give  it  the  public  highway  as  private  property  ;  to  arm  a  body 
of  mere  adventurers  with  the  police  authority  of  the  Commonwealth, 
and  to  convert  railroad  managers  from  public  servants  into  public  rob 
bers.  You  might  as  well  say  that  the  Legislature  could  sell  the  State 
out  and  out. 

Upon  the  same  principle  a  grant  of  authority  to  discriminate  be 
tween  one  citizen  and  another  is  worthless.  The  rights  of  all  the  peo 
ple  to  be  protected  against  robbery  and  extortion  are  precisely  equal, 
and  the  Legislature  can  not  barter  away  one  more  than  the  rest ;  that 
is  to  say,  a  wholesale  bargain  of  that  kind  would  be  no  worse  than  a 
contract  to  sell  the  rights  of  individual  citizens  at  retail. 

If,  therefore,  these  companies  had  a  bargain  with  the  State,  ex 
pressly  giving  them  power  to  charge  unreasonable  or  discriminating 
freights,  it  would  be  a  mere  nullity,  and  of  course  revocable  at  the  will 
of  the  Legislature. 

But  no  such  contract  was  ever  made  between  this  State  and  any 
railroad  company  ;  at  least,  I  never  saw  an  act  of  incorporation  upon 
which  a  decent  pretense  of  that  kind  could  be  set  up. 


184:  MISCELLANEOUS. 

You  must  remember  that  in  a  public  grant,  whether  of  land, 
money,  or  franchises,  nothing  passes  by  construction  ;  the  grantee  at 
the  very  utmost  gets  only  what  is  given  in  express  words  of  which  the 
sense  is  too  plain  to  be  misunderstood — nothing  goes  by  inference — no 
ambiguous  phrase  carries  with  it  anything  to  swell  the  dimensions  of 
the  gift. 

Now,  where  is  the  express  grant  of  power  to  take  more  than  a  fair 
and  reasonable  toll  for  the  use  of  any  railroad  ?  In  what  act  of  incor 
poration  is  it  stipulated  that  the  State  may  not  adjust  the  tolls  accord 
ing  to  what  she,  by  her  proper  authorities,  shall  deem  a  reasonable 
rule  ?  The  sole  answer  ever  given  to  this  is,  that  in  some,  if  not  all 
of  the  charters,  there  is  a  provision  forbidding  the  company  to  make 
any  charge  beyond  a  certain  rate  per  ton  per  mile,  and  from  this  pro 
hibition  against  taking  more  they  infer  the  right  to  take,  in  spite  of 
the  State,  anything  they  please  under  that  maximum,  whether  it  be 
reasonable  or  not.  But  it  is  precisely  such  inferences  that  you  can 
not  make  ;  they  are  excluded  by  the  rule  of  interpretation  already 
mentioned. 

Neither  does  their  practice  of  discrimination  find  the  slightest 
countenance  in  any  word  of  the  charters.  When  did  you  ever  see  an 
act  of  incorporation  expressly  declaring  that  the  company  shall  have 
power  to  make  a  difference  between  two  citizens  whose  legal  and  natu 
ral  rights  to  the  use  of  the  highway  are  precisely  the  same  ?  Where 
do  you  find  the  words  which  clothe  any  company  with  the  awful  power 
to  crush  out  the  business  of  one  man  with  burdens  which  he  can  not 
bear,  in  order  that  another,  in  which  the  railroad  has  an  interest,  may 
be  built  up  ?  But  especially  and  particularly  I  desire  to  know  what 
part  of  any  bargain  with  the  State  justifies  the  extortion  of  higher 
rates  from  a  poor  man,  on  his  little  freights,  than  from  a  rich  one  on 
his  great  and  valuable  cargoes  ?  If  you  can  not  put  your  finger  on  the 
very  words  that  give  this  authority,  then  the  authority  is  withheld 
and  the  practice  forbidden. 

But  that  is  not  all.  The  limitation  of  the  charges  to  rates,  per 
fectly  and  uniformly  proportioned  to  weight  and  distance,  must  be 
apparent  to  any  one  who  will  consider  the  nature  of  the  contract,  the 
subject-matter  of  it,  and  the  parties  to  it.  The  Commonwealth,  re 
serving  the  equal  proprietary  rights  of  all  the  people  to  the  use  of  the 
highway,  agrees  to  employ  a  corporation  as  her  agent,  to  see  that  the 
exercise  of  the  right  by  every  citizen  is  properly  facilitated,  and  never, 
in  any  case,  impeded,  delayed,  or  hindered.  The  agent  agrees  to  do 
this  service  at  rates  which,  in  the  aggregate,  will  be  a  reasonable  com 
pensation  for  all  the  labor  and  expense  of  it.  As  between  the  State, 
who  is  the  employer,  and  the  corporation,  which  is  the  employe,  the 
contract  is  an  entire  one — a  lump  bargain — an  agreement  to  do  one 
whole  job,  which  comprehends  all  the  carrying  for  all  the  people  on 


MISCELLANEOUS.  185 

that  highway  at  a  price  for  which  the  only  measure  furnished  by  the 
contract  is  weight  and  distance.  Whenever,  in  those  acts  of  incorpo 
ration,  any  mention  is  made  of  rates,  taxes,  or  tolls,  they  are  spoken 
of  as  proportioned  to  the  use  made  of  the  road  by  him  who  pays  them — 
so  much  per  ton  per  mile,  whether  the  miles  be  many  or  few,  up  grade 
or  down,  without  regard  to  the  number  of  tons  carried  at  one  time, 
or  at  different  times,  for  the  same  shipper. 

Let  me  illustrate  a  little  further.  If  you  make  a  contract ,  to  do  a 
job  of  excavation  at  a  price  per  cubic  yard  which  gives  you  a  heavy 
profit  on  the  whole  job,  have  you  a  legal  right  to  demand  additional 
pay  for  particular  parts  of  it,  which  you  allege  to  be  harder  than  the 
rest  ?  I  do  not  say  what  claim  you  might  have  upon  the  liberality  of 
your  employer  if  the  bargain,  taken  altogether,  were  a  losing  one ;  I 
only  ask  whether  you  could,  by  construction  of  the  contract,  charge 
more  for  one  yard  than  another  ? 

Take  a  case  more  precisely  analogous.  A  contractor  agrees  to  pave 
a  mile  of  street  at  so  much  per  foot,  taxing  the  owners  of  the  lots  for 
the  number  of  feet  that  front  upon  each  one's  property.  Such  con 
tracts  have  been  often  made  by  the  authorities  of  towns  and  cities,  and 
they  have  never  been  understood  to  warrant  a  higher  charge  per  foot 
against  the  owners  of  small  and  cheap  lots  than  against  the  proprietors 
of  those  which  are  more  valuable. 

Seasoning  fairly  from  premises  known  to  be  true,  you  can  not  es 
cape  the  conclusion  that  the  extravagant  and  discriminating  charges 
of  these  corporations  are  a  fraud  upon  their  own  charters,  as  well  as  a 
gross  wrong  to  their  victims.  The  contracts  they  invoke  to  save  them 
from  the  justice  of  the  State  are  as  strong  against  them  as  the  Consti 
tution  itself. 

But  there  is  a  power  of  the  State  to  control  them,  to  check  their 
rapacity,  and  to  make  them  honest,  which  lies  back  of  all  this.  The 
police  authority,  of  which  she  can  not  disarm  herself  if  she  would, 
enables  her  to  regulate  the  use,  even  of  private  property,  in  such  man 
ner  that  neither  the  general  public  nor  particular  individuals  can  be 
made  to  suffer  by  it  unjustly.  Upon  that  principle  you  can  forbid  an 
excessive  rate  of  interest  upon  the  loan  of  money,  fix  the  charges  of 
hack-drivers,  or  ferrymen,  or  tavern-keepers,  or  the  owners  of  grain- 
elevators. 

Besides  all  that,  the  State  can  abolish  a  monopoly,  or  bring  it  to 
terms  of  justice,  at  any  time,  by  virtue  of  her  right  of  eminent  domain. 
All  property,  corporeal  and  incorporeal,  is  held  upon  condition  that  it 
may  be  divested  whenever  the  general  interest  requires  it.  All  char 
ters  and  acts  of  incorporation  are  subject  to  such  modification  as  may 
be  necessary  to  prevent  the  owners  from  doing  wrong  to  the  public. 
This  principle  was  expressed  in  the  Constitution  by  the  amendment 
of  1856  ;  but  that  was  not  its  origin  :  it  existed  from  time  immemorial 


186  MISCELLANEO  US. 

as  a  rule  of  public  and  universal  law.  It  lias  always  been  one  of  the 
powers  of  every  sovereign  government,  and  it  applies  with  equal  force 
to  all  charters,  whether  dated  before  or  after  1856. 

These  are  arguments  in  favor  of  the  power.  Except  in  Pennsyl 
vania,  it  would  not  be  necessary  to  state  them.  Everywhere  else  the 
most  zealous  advocates  of  corporate  monopoly  concede  the  authority 
in  question,  while  they  deprecate  its  exercise.  But  here  the  shal 
low  notion  still  lingers  that  an  act  of  incorporation  is  an  irrevocable 
license  to  defraud  and  plunder  whomsoever  the  managers  please  to  se 
lect  as  their  prey. 

I  have  hesitated  to  speak  of  free  tickets.  I  can  understand  how  a 
thing  so  cheap  might  be  accepted  as  a  mere  courtesy,  like  a  drink  or 
a  dinner.  Perhaps,  therefore,  it  is  not  malum  in  se.  But  since  1874 
no  man  can  hold  office  without  taking  an  oath  to  obey  the  Constitu 
tion,  which  expressly  prohibits  free  passes.  Can  that  oath  be  violated 
with  a  safe  conscience  ?  I  am  a  private  citizen,  and  I  speak  with  re 
spect  for  the  better  judgment  of  others  when  I  say  that  executive  and 
judicial  officers  who  have  acted  thus  during  the  last  ten  years  ought 
to  be  impeached  and  removed  from  their  places.  But  that  is  easier 
said  than  done  ;  for  the  House  of  Kepresentatives,  which  should  prefer 
the  impeachment,  and  the  Senate,  which  has  exclusive  jurisdiction  to 
try  it,  are  tarred  nearly  all  over  with  the  same  stick. 

The  legal  predicament  in  which  this  practice  places  the  railroad 
officers  is  somewhat  worse.  The  passes  which  they  distribute  are 
things  of  considerable  value ;  worth,  perhaps,  two  or  three  hundred 
dollars  apiece,  and  hundreds  of  thousands  altogether.  If  the  agents 
of  the  company  would  bring  up  that  much  money  in  a  bag,  at  the 
first  meeting  of  every  Legislature,  and  hand  it  around  to  the  members, 
dishing  out  their  shares  to  the  judges  and  executive  officers,  it  would 
look  very  much  like  wholesale  bribery.  But  to  bribe  an  officer  it  is  not 
necessary  that  money  should  be  used.  Giving  or  offering  "anything 
of  value,  testimonial,  privilege,  or  personal  advantage,"  is,  by  the  Con 
stitution  and  the  statute,  the  same  crime  as  giving  silver  dollars,  gold 
eagles,  or  greenbacks.  It  must  appear,  however,  that  it  was  given  to 
influence  the  officer  or  member  of  the  General  Assembly  in  the  perform 
ance  of  his  public  or  official  duties.  That  is  undoubtedly  the  very  pur 
pose  and  object  of  giving  passes  to  members  of  the  Legislature.  I  do 
not  say  or  think  that  those  Senators  and  Eepresentatives  who  receive 
them  consent  to  be  so  influenced.  But  that  does  not  redeem  the  guilt 
of  the  giver,  to  whom  it  is  impossible  to  ascribe  any  other  intent  than  the 
criminal  one.  Those  great  corporate  officers  and  their  respectable  sub 
ordinates,  who  are  concerned  directly  and  indirectly  in  these  practices, 
are  probably  ignorant  of  the  existing  law.  They  ought  to  be  solemnly 
warned  by  some  penal  enactment  directly  and  exclusively  aimed  at  this 
besetting  sin. 


MISCELLANEOUS.  187 

We  are  often  told  that  in  this  struggle  for  honest  government 
against  the  power  of  the  railroad  corporations  the  just  cause  has  no 
chance  of  success.  We  do  seem  to  be  out  on  a  forlorn  hope.  The 
little  finger  of  monopoly  is  thicker  than  the  loins  of  the  law. 

The  influence  of  our  enemies  over  the  Legislature  is  mysterious, 
incalculable,  and  strong  enough  to  make  the  Constitution  a  dead 
letter  in  spite  of  oaths  to  obey  it,  and  a  popular  demand,  almost  uni 
versal,  to  enforce  it.  There  is  no  other  subject  upon  which  the  press 
is  so  shy  as  upon  this,  the  most  important  of  all.  Afraid  to  oppose 
the  corrupt  corporations,  and  ashamed  to  defend  them,  it  sinks  into 
silent  neutrality.  Prudent  politicians  always  want  a  smooth  road  to 
run  on,  and  the  right  path  here  is  full  of  impediments.  In  this  state 
of  things  we  seem  to  be  weaker  than  we  really  are  ;  for  the  unbroken 
heart  of  the  people  is  on  the  side  of  justice,  equality,  and  truth.  Mo 
nopolists  may  sneer  at  our  blundering  leadership  and  the  unorganized 
condition  of  our  common  file,  but  they  had  better  bethink  them  that, 
when  the  worst  comes  to  the  worst,  our  raw  militia  is  numerous  enough 
to  overwhelm  their  regulars,  well  paid  and  well  drilled  as  they  are. 
They  have  destroyed  the  business  of  hundreds  for  one  that  they  have 
favored.  For  every  millionaire  they  have  made  ten  thousand  paupers, 
and  the  injured  parties  lack  no  gall  to  make  oppression  bitter. 

The  people,  certainly,  got  one  immense  advantage  over  the  carry 
ing  corporations  when  they  adopted  the  seventeenth  article  of  the 
Constitution.  That  concedes  to  us  all  the  rights  we  ask,  puts  the  flag 
of  the  Commonwealth  into  our  hands,  and  consecrates  our  warfare. 
The  malign  influence  that  heretofore  has  palsied  the  legislative  arm  can 
not  last  forever.  We  will  continue  to  elect  representatives  again  and 
again,  and  every  man  shall  swear  upon  the  gospel  of  God  that  he  will 
do  us  the  full  and  perfect  justice  which  the  Constitution  commands. 
At  last  we  will  rouse  the  "  conscience  of  a  majority,  screw  their  cour 
age  to  the  sticking-place,  and  get  the  appropriate  legislation  "  which 
we  need  so  sorely. 

Whenever  a  majority  in  both  Houses  become  independent  enough 
to  throw  off  the  chains  which  now  bind  them  to  the  service  of  mo 
nopoly — when  frequent  repetitions  of  the  oath  to  obey  the  Constitu 
tion  shall  impress  its  obligation  upon  their  hearts — when  admonition 
and  reproof  from  within  and  without — "  line  upon  line,  precept  upon 
precept,  here  a  little  and  there  a  little,"  shall  have  taught  them  that 
fidelity  to  the  rights  of  the  people  is  a  higher  virtue  than  subserviency 
to  the  mere  interests  of  a  corrupt  corporation — when  the  seventeenth 
article  shall  have  been  read  and  reread  in  their  hearing  often  enough 
to  make  them  understand  the  import  of  its  plain  and  simple  words — 
then,  without  further  delay  and  with  no  more  paltry  excuses,  they 
will  give  us  legislation  appropriate,  just,  and  effective.  A  tolerably 
clear  perception  of  their  duty,  coupled  with  a  sincere  desire  to  do  it, 


188  MISCELLANEOUS. 

will  enable  them  to  catch  the  shortest  and  the  easiest  way.  All  trifling 
with  the  subject  will  cease  at  once ;  all  modes  of  evading  this  great 
point  will  go  out  of  fashion  ;  no  contrivance  will  be  resorted  to  of 
ways  not  to  do  it  while  professing  to  be  in  favor  of  it ;  our  common 
sense  will  not  be  insulted  by  the  offer  of  a  civil  remedy  to  each  indi 
vidual  for  public  offenses  which  affect  the  whole  body  of  the  people 
and  diminish  the  security  of  all  men's  rights  at  once.  The  legislative 
vision,  relieved  from  the  moral  strabismus  which  makes  it  crooked 
now,  will  see  straight  through  the  folly  of  trying  to  correct  the  gen 
eral  evil  except  by  the  one  appropriate  means  of  regular  punishment 
at  the  suit  of  the  State.  Does  this  seem  harsh  ?  Certainly  not  more 
severe  than  any  other  criminal  law  on  our  statute-book  which  applies 
to  railway  managers  as  well  as  to  everybody  else.  They  need  not  suffer 
the  penalty  unless  they  commit  the  crime  ;  and  they  will  not  commit 
the  crime  if  you  make  a  just  penalty  the  legal  consequence.  Pass  a 
proper  law  to-day,  and  they  will  be  as  honest  as  you  are  to-morrow. 
Every  one  of  them  can  be  trusted  to  keep  clear  of  acts  which  may 
take  him  to  the  penitentiary.  They  have  been  guilty  in  their  past 
lives,  and  will  continue  in  evil-doing  for  some  time  to  come,  because 
the  present  state  of  your  laws  assures  them  that  they  shall  "go  un- 
whipped  of  justice."  But  threaten  them  with  a  moderate  term  of 
imprisonment  and  a  reasonable  fine,  and  they  will  no  more  rob  a  ship 
per  on  the  railroad  than  they  will  pick  your  pocket  at  a  prayer-meet 
ing.  Your  law  will  do  its  work  without  a  single  prosecution.  Thus 
you  could,  if  you  would,  effect  a  perfect  reform,  and  yet  not  hurt  a 
hair  on  any  head — "  a  consummation  most  devoutly  to  be  wished." 

But  it  is  not  to  be  expected  that  such  good  will  come  immediately. 
Nearly  ten  years  ago  the  Legislature  was  commanded  to  carry  out  the 
beneficent  measure  of  the  Constitution.  For  nine  years  that  illus 
trious  body  was  a  dumb  impediment  to  the  course  of  justice — all  its 
faculties  paralyzed  by  some  inscrutable  influence — dead — devoid  of 
sense  and  motion,  as  if  its  only  function  was  to  "  lie  in  cold  abstrac 
tion  and  to  rot."  At  last,  when  it  was  wakened  up  by  the  present 
Governor  and  reminded  of  the  seventeenth  article,  it  opened  its 
mouth  and  spoke  as  one  who  did  not  know  whether  he  was  sworn  to 
oppose  the  Constitution  or  to  obey  it.  Some  members  have  shown 
their  utter  hostility  to  it,  some  seem  willing  to  defend  small  portions 
of  it,  and  one  Senator  discovered  that  it  was  all  equally  sacred.  But 
his  plan  meets  no  favor.  Still,  we  need  not  despair.  The  people  and 
the  Constitution,  mutually  supporting  one  another,  will  be  triumphant 
yet.  Meanwhile  let  all  the  railroad  rings  rejoice.  This  is  their  day ; 
ours  is  to  come. 


EULOGIES. 


ON  THE  LIFE  AND  CHARACTER  OF  GENERAL  ANDREW 
JACKSON,  DELIVERED  AT  BEDFORD,  PENNSYLVANIA, 
JULY  28,  1845. 

FELLOW-CiTizEisrs  :  We  have  met  to  pay  our  tribute  of  respect  and 
admiration  to  the  memory  of  the  man  who  has,  for  nearly  fifty  years, 
filled  a  large  space  in  the  public  eye,  and  whose  character,  for  the  last 
thirty  years,  has  been  the  almost  constant  subject  of  discussion  by 
this  whole  nation.  His  friends  constituted  a  very  large  majority  of 
the  people,  and  on  their  lips  his  name  was  the  most  familiar  topic  of 
applause.  In  their  eyes  he  was  mighty  in  word  and  in  deed.  If  he 
addressed  their  understandings,  they  were  convinced  by  what  they 
deemed  his  unanswerable  reasoning  ;  if  he  spoke  to  their  hearts,  their 
affections  gushed  forth  in  overflowing  gratitude  and  veneration.  In 
civil  and  in  military  life  he  was,  alike  and  at  all  times,  "  the  hero 
they  loved  and  the  chief  they  admired." 

This  devoted  attachment  was,  however,  not  universal.  A  large 
minority,  not  only  respectable  by  its  numbers,  but  formidable  by  the 
talents,  the  moral  influence,  and  the  social  dignity  of  its  members, 
had  a  far  different  opinion  of  his  character.  By  them  his  qualifica 
tions  as  a  statesman  were  derided ;  and,  though  his  military  services 
were  not  denied,  his  opponents  were  not  always  unwilling  to  depre 
ciate  the  value  even  of  them. 

The  discussion  was  bitter  enough  while  it  lasted — too  bitter,  per 
haps,  for  the  credit  of  those  engaged  in  it.  But  death,  if  it  has  not 
closed  the  controversy,  has  at  least  softened  the  tone  in  which  it  is  to  be 
conducted.  The  king  of  terrors  is  merciful  as  well  as  severe.  When 
he  strikes  a  great  man  to  the  earth,  he  interposes  between  him  and 
his  enemies  the  most  effective  shield  his  character  can  have.  Human 
nature  recoils  from  an  effort  to  disturb  the  ashes  of  the  departed,  and 
shrinks  from  any  attempt  to  continue  a  war  against  the  spirit  which 
has  already  rendered  its  final  account  to  the  Great  Judge.  When  the 
career  of  a  public  man  is  once  closed  forever,  his  opponents  review 


]90  EULOGIES. 

their  old  opinions  with  candor,  the  indifferent  become  interested,  and 
hearts  that  were  cold  and  hardened  are  moved,  at  last,  to  "the  late 
remorse  of  love."  Men  whose  position  in  society  or  whose  relations 
to  the  public  compelled  them  to  be  neutral  in  his  lifetime,  are  re 
leased  by  his  death  from  the  obligation  of  silence,  and  may  vindicate 
him  if  they  will  as  freely  as  others. 

But  there  is  a  measure  of  justice  even  for  the  dead.  Truth  is  not 
less  important,  when  the  grave  has  closed  over  the  person  to  whom 
it  relates,  than  it  was  when  he  lived  and  moved  among  us.  The 
majesty  of  death,  though  it  awes  partisan  malignity  into  silence,  com 
mands  the  voice  of  history  to  speak  and  the  world  to  listen  to  its 
truths  ;  and  no  matter  whether  its  judgment  be  favorable  or  adverse, 
the  tribunal  is  too  august  to  be  trifled  with,  and  its  decrees  must  be 
submitted  to. 

In  the  case  of  the  man  upon  whose  character  you,  as  a  part  of  his 
countrymen,  are  now  sitting  in  judgment,  we  ask  nothing  but  patience 
and  candor.  We  make  no  claim  to  your  sympathies,  on  the  mere 
ground  of  reverence  for  the  dead.  We  are  indeed  most  anxious 
that  the  good  he  has  done  should  live  after  him,  but  we  do  not  de 
mand  that  the  evil  should  be  interred  with  his  bones.  In  dealing 
with  his  memory  there  is  no  middle  way.  He  himself  was  not  a  half 
way  man.  If  he  was  really  unprincipled  and  bad,  he  was  the  very 
worst  man  his  country  ever  produced — nay,  he  was  almost  a  demon 
— and  his  memory  should  be  clothed  with  infamy  as  with  a  garment. 
But  if  the  opinions  of  his  friends  be  correct,  I  know  not  the  man 
on  earth  whose  eloquence  is  strong  enough  to  speak  his  eulogy- 
there  can  scarcely  be  a  limit  to  the  admiration  which  is  due  to  him. 
The  timid  or  the  false  friend,  who  would  "damn  him  with  faint 
praise,"  is  only  a  little  better  than  the  enemy  who  would  blacken  him 
with  defamation. 

Taking  as  I  do  the  better  (and  I  trust  the  truer)  view  of  his  char 
acter,  I  can  say,  with  the  most  perfect  conviction  of  its  truth,  that 
ANDREW  JACKSON  is  entitled  to  stand  higher  on  the  list  of  public 
benefactors  than  any  other  man  of  his  time — that  he  was  a  soldier  un 
rivaled  for  skill  and  intrepidity,  a  patriot  pure  and  faithful,  and  a 
statesman  uniting  the  greatest  and  best  qualities  of  a  republican  ruler. 

If  these  propositions  be  true,  they  ought  to  be  proved— and  when 
proved,  they  ought  to  be  admitted  by  those  who  may  now  be  disposed 
to  deny  them.  It  is  time  the  vexed  question  were  settled.  The  great 
cause  of  human  liberty  suffers  by  every  moment  of  delay.  If  it  be 
true  that  the  man  whom  an  immense  majority  of  the  American  peo 
ple  believed  to  be  honest  and  wise,  was  merely  a  headlong  tyrant, 
ignorant,  reckless,  overbearing,  and  unprincipled,  then  is  that  peo 
ple  wholly  incapable  of  self-government.  If  they  not  only  gave  up 
the  helm  of  their  republic  into  the  hands  of  a  most  unworthy  man, 


EULOGIES.  191 

but  praised  him  when  his  insane  ambition  trampled  on  their  rights, 
and  afterward  solemnly  approved  all  his  mad  pranks,  then  they  have 
neither  the  spirit  nor  the  intelligence  of  freemen.  In  that  case  their 
consummate  folly  admits  no  prospect  of  a  cure.  The  bubble  of  repub 
licanism  has  burst ;  the  experiment  has  failed  ;  and  our  final  hope  for 
the  cause  of  liberal  principles  must  be  converted  into  flat  despair. 
In  vindicating  the  name  of  Jackson,  therefore,  from  whatever  of  mis 
construction  it  may  have  suffered,  we  are  serving  the  greatest  and 
most  elevated  of  all  human  purposes — the  advancement  of  civil  and 
religious  liberty.  Every  one  should  be  rejoiced  to  see  such  a  man 
take  his  true  position  in  the  history  of  his  country ;  and  I  have  far 
overestimated  the  magnanimity  of  that  great  party  who  thought  it 
their  political  duty  to  oppose  him,  if  they  should  not  be  as  glad  as 
others  to  see  justice  done  to  his  name ;  and  that  for  their  own  sake 
as  well  as  for  his. 

Upon  such  a  character  as  Jackson's,  declamation  would  be  out  of 
place.  A  pompous  panegyric,  "full  of  sound  and  fury  signifying 
nothing,"  may  be  required  to  cover  the  defects  of  others  ;  but  he  needs 
it  not.  The  highest  possible  praise  we  can  bestow  on  him  will  be  to 
recount  a  few  of  the  prominent  events  of  his  life  in  the  plain  style  of 
simple  narration.  We  must  necessarily  deal  in  dry  matters  of  fact,  and 
I  give  you  notice  that  I  intend  to  be  as  dull  and  tedious  as  the  pur 
pose  I  have  in  view  requires  that  I  should  be. 

Andrew  Jackson  had  his  birth  in  one  of  the  back  settlements  of 
South  Carolina  some  nine  or  ten  years  before  the  Declaration  of  Inde 
pendence.  Of  his  father  little  seems  to  be  known,  but  his  mother, 
who  became  a  widow  when  he  was  two  years  old,  must  have  been  a 
most  remarkable  woman.  When  the  tide  of  war  rolled  toward  her 
neighborhood,  with  the  devotedness  of  a  Spartan  mother,  she  sent  out 
her  three  sons  (all  the  children  she  had)  to  fight  for  their  country. 
Even  her  youngest  boy,  not  fourteen  years  of  age,  whose  affectionate 
nature  and  quick  intellect  had  made  him  the  pride  of  her  heart — even 
him  she  took  away  from  the  school  where  she  was  educating  him  for 
the  ministry,  and  when  his  bright  eye  kindled  with  indignation  at  the 
story  of  his  country's  wrongs,  she  put  the  war-harness  on  his  young 
limbs  and  told  him  to  go  forth  and  strike  for  the  oppressed.  Her 
eldest  son  fell  at  Stono.  The  two  survivors  were  present  at  the  battle 
of  the  Hanging  Rock,  and  were  taken  prisoners  after  the  defeat.  By 
her  energy  and  influence  an  exchange  was  effected,  and  she  brought 
them  home  from  Camden,  wasted  with  disease  and  gashed  with 
wounds.  One  of  them  reached  home  only  in  time  to  die  there,  and 
the  other  recovered  as  by  a  miracle.  But  before  he  was  altogether 
well,  his  mother  left  the  bedside  of  her  youngest,  her  favorite  and  now 
her  only  child,  to  go  on  another  errand  of  mercy — to  convey  some 
comforts  and  necessaries  to  the  poor  prisoners  at  Charleston,  who  were 


192  EULOGIES. 

suffering  there,  as  her  sons  had  suffered  at  Camden,  by  cruelty  and 
want.  While  there,  she  took  the  fever  of  the  prison  and  died  on  her 
way  home.  She  was  a  Christian  and  a  heroine,  and  she  died  a  martyr 
to  the  kindness  of  her  own  heart.  No  monument  perpetuates  her  vir 
tues,  but  her  memory  lives^in  the  deathless  fame  of  her  son  ;  and  if  a 
column  were  raised  above  her  grave,  high  enough  to  pierce  the  clouds, 
no  greater  praise  could  be  inscribed  on  it  than  this  :  that  she  was 
WORTHY  to  be  the  mother  of  Andrew  Jackson. 

When  that  young  man  arose  from  his  bed — the  only  survivor  of  his 
family — he  had  time  to  count  how  much  the  independence  of  his 
country  had  cost  him.  Others  were  in  a  condition  to  serve  the  cause 
more  effectually,  but  no  one  suffered  more  deeply  than  himself.  He 
had  seen  his  neighbors  and  friends  slaughtered  and  hanged  with 
shameless,  cold-blooded  cruelty,  and  their  property  pillaged,  by  an 
enemy  calling  himself  civilized.  His  brothers  had  fallen  in  the  strife, 
and  his  more  than  heroic  mother  had  met  her  death  in  an  effort  to 
relieve  the  victims  of  oppression.  The  tyrants  had  not  left  him  a 
relative  on  earth — "not  a  drop  of  his  blood  flowed  in  the  veins  of  any 
living  creature " — and  in  his  own  person  he  had  endured  captivity, 
and  blows,  and  insults.  No  wonder  that  his  high  spirit,  so  sensitive 
to  wrong  and  injury,  should  have  hated  tyranny,  all  his  life  afterward, 
with  a  deadly  hatred — no  wonder  that  his  fervent  nature  became 
wedded  forever  with  a  love  unchangeable  to  the  liberty  for  which  he 
had  paid  so  dear  a  price. 

After  the  peace,  he  worked  a  while  at  the  trade  of  a  saddler,  then 
resumed  his  literary  pursuits,  completed  his  education,  read  law,  was 
admitted  to  the  bar,  and  soon  afterward  removed  to  Nashville. 

The  commencement  of  his  practice  is  worth  remembering.  Nash 
ville  was  settled  by  adventurers  from  every  quarter — some  of  them 
scarcely  as  honest  as  they  should  have  been — and  the  restraints  of  an 
organized  society  not  being  on  them,  they  defied  justice.  Neither 
property  nor  life  was  secure.  A  number  of  these  desperate  men  had 
gone  largely  in  debt  to  the  merchants  and  tradesmen  of  the  place,  and, 
having  no  fear  of  law  before  their  eyes,  had  come  to  the  resolution  to 
repudiate  their  contracts.  They  had  already  secured  all  the  profes 
sional  assistance  there,  and  as  soon  as  Jackson  arrived  they  offered  to 
retain  him  also.  He  ascertained  that  they  had  no  honest  defense,  and 
with  a  generous  and  manly  scorn  he  put  back  their  fees  and  scouted 
them  from  his  presence.  They  tried  to  intimidate  him,  by  threats  of 
personal  vengeance,  from  being  concerned  against  them  ;  but  they 
found  him  as  fearless  as  he  was  honest.  He  accepted  the  retainer  of 
the  creditors,  and  issued  seventy  writs  the  next  day.  Justice  was 
triumphant,  as  it  always  was  when  he  saw  to  its  execution  ;  and  from 
that  day  Tennessee  dates  the  supremacy  of  law  and  order  within  her 
boundaries. 


EULOGIES.  193 

His  professional  course,  thus  nobly  begun,  was  worthily  sustained. 
His  talents,  integrity,  and  keen  appreciation  of  whatever  was  just,  and 
his  utter  hatred  of  knavery  in  all  its  forms,  soon  won  him  the  un 
bounded  confidence  of  all  good  men  and  conquered  the  respect  even 
of  the  bad.  He  was  appointed  Attorney-General  of  the  Territory  ;  and 
when  Tennessee  was  ready  to  come  into  the  Union,  he  was  elected  a 
member  of  the  convention  to  form  a  Constitution.  His  intimate 
knowledge  of  and  warm  attachment  for  the  broad  principles  of  demo 
cratic  liberty  made  him  the  observed  of  all  observers  in  the  conven 
tion.  The  Constitution  framed  by  that  body,  with  its  liberal  and 
comprehensive  bill  of  rights,  its  careful  separation  of  powers,  and  espe 
cially  by  its  strong  denunciation  of  monopolies,  bears  the  full  impress 
of  his  vigorous  mind. 

For  his  services  in  laying  the  foundation  of  their  government,  the 
people  were  thoroughly  grateful,  and  they  showed  it  by  electing  him 
to  the  highest  office  in  their  gift  for  which  he  was  eligible.  He  was 
under  the  constitutional  age  of  a  Senator,  and  the  new  State  had  but 
one  Eepresentative  in  Congress.  To  this  latter  post  they  elected  him 
unanimously. 

During  his  service  in  Congress  an  incident  occurred  which  ought 
to  be  mentioned,  not  merely  because  it  was  honorable  to  Jackson,  but 
because  his  enemies  have  made  it  the  subject  of  some  railing  accusa 
tions.  General  Washington's  presidential  term  was  drawing  to  a  close, 
and  he  was  about  retiring  from  public  life.  A  resolution  was  proposed, 
expressing  the  warmest  affection  for  him,  and  great  regret  for  the 
necessity  of  losing  his  services.  To  this  part  all  were  willing  to  assent. 
In  that  shape  it  would  have  passed  unanimously  ;  and,  if  there  was  one 
man  in  the  House  who  loved  Washington  better  than  another,  it  was 
the  young  member  from  Tennessee.  But  the  Federal  or  Anti-republi 
can  party  determined  to  make  some  capital  for  themselves,  and  having 
a  majority  in  the  House,  they  so  framed  the  resolve  as  to  make  it 
express  their  approbation  of  all  the  measures  taken  by  his  Cabinet. 
The  pernicious  funding  system  of  Hamilton  and  the  National  Bank, 
chartered  in  1791,  on  the  recommendation  of  the  same  officer,  reeking 
as  both  were  with  corruption,  were  to  be  indorsed  with  the  rest.  All 
motions  to  amend  were  promptly  rejected,  and  the  minority  were 
given  to  understand  that  they  must  either  say  by  their  votes  that  they 
approved  the  obnoxious  policy  of  Adams,  Hamilton,  and  Knox,  or  else 
submit  to  the  popular  odium  of  appearing  to  oppose  the  greatest  and 
best  man  that  ever  lived.  The  trick  succeeded  with  nearly  all ;  but 
there  were  two  disciples  of  Jefferson  there  who  had  the  moral  courage 
to  vote  in  the  negative.  I  need  not  tell  you  that  one  of  them  was 
Andrew  Jackson  ;  for  his  moral  courage  never  failed  him.  The  other 
was  Edward  Livingston,  his  bosom  friend  throughout  the  most  trying 
scenes  of  his  subsequent  life. 

13 


194  EULOGIES. 

When  he  was  barely  the  constitutional  age  he  was  elected  to  the 
Senate  of  the  United  States  without  solicitation  and  without  opposi 
tion.  He  resigned  his  seat  in  that  body  before  the  close  of  the  first 
session.  He  was  there,  however,  long  enough  to  show  his  devotion  to 
sound  principles  by  opposing  the  alien  and  sedition  laws. 

He  was  drawn  from  his  retirement  soon  afterward  by  an  appoint 
ment  as  Judge  of  the  Supreme  Court  of  his  State.  He  was  then  but 
thirty-one  years  old,  and  is  perhaps  the  only  instance  in  this  country 
of  any  man  having  reached  so  high  a  judicial  station  at  a  period  of  life 
so  early.  The  office  of  a  judge  is  not  a  place  where  shining  talents 
can  be  made  conspicuous  ;  the  bench  is  no  place  for  brilliant  displays ; 
the  utmost  distinction  its  occupant  can  properly  aim  at,  is  the  nega 
tive  praise  of  having  done  no  wrong.  He  kept  the  ermine  unspotted, 
and  no  one  but  himself  ever  doubted  his  abilities.  Long  afterward, 
his  most  bitter  political  opponents,  in  recommending  a  man  for  the 
presidency  who  had  sat  upon  the  same  bench,  could  think  of  no  higher 
praise  to  bestow  on  the  judicial  character  of  their  favorite  than  to  say 
that  his  legal  opinions  were  as  sound  arid  as  able  as  those  of  Jackson. 
When  he  proposed  to  resign,  the  members  of  the  Legislature  addressed 
to  him  an  earnest  remonstrance,  demanding  of  him,  in  the  name  of 
their  common  country,  that  his  great  powers  of  thought  and  independ 
ence  of  mind  (I  use  their  own  language)  should  not  be  lost  in  retire 
ment.  At  their  request  he  held  the  office  for  six  years.  His  resigna 
tion,  when  it  did  take  place,  was  regretted  by  all,  except  those  who 
were  connected  with  an  association  of  land-jobbers ;  and  he  had  the 
honor  to  incur  their  enmity  by  exposing  their  frauds. 

In  February,  1812,  Congress  authorized  the  President  to  accept 
the  service  of  fifty  thousand  volunteers.  Twenty-five  hundred  Ten- 
nesseeans  agreed  to  volunteer,  if  Jackson  would  command  them.  He 
placed  himself  at  their  head  and  marched  them  to  Natchez.  There  he 
was  met  by  an  order  from  the  Government  to  dismiss  his  men  at  once, 
and  deliver  all  his  stores  and  public  property  to  General  Wilkinson. 
The  result  of  his  literal  obedience  would  have  been  to  send  his  troops 
home  a  distance  of  more  than  five  hundred  miles  unorganized,  un 
armed,  and  unsupplied  with  provisions,  through  a  howling  wilderness, 
inhabited  only  by  hostile  Indians,  without  even  a  means  of  conveyance 
for  the  sick.  He  refused,  of  course.  He  took  the  responsibility.  He 
delivered  such  stores  as  would  not  be  absolutely  needed  on  the  way, 
marched  his  men  back  to  Nashville,  and  discharged  them  there.  The 
War  Department  afterward  approved  his  conduct  in  not  executing 
literally  that  improvident  order. 

In  a  few  months  after  this,  the  whole  population  of  Tennessee  were 
stricken  with  horror  by  the  intelligence  from  Fort  Mimms,  of  the 
most  ferocious  massacre,  the  bloodiest  and  most  relentless  butchery 
recorded  even  in  the  annals  of  savage  warfare.  The  Indians,  instigated 


EULOGIES.  195 

by  the  British,  had  surprised  the  station  and  murdered  men,  women, 
and  children  indiscriminately.  Similar  atrocities  were  daily  expected 
on  other  frontier  settlements.  In  this  extremity  every  eye  was  turned 
upon  Jackson  ;  the  hearts  of  the  people  would  know  no  other  leader. 
It  happened  that  he  was  then  confined  to  his  bed  with  a  broken  limb. 
The  Governor  and  a  deputation  of  the  Legislature  went  to  his  residence 
and  told  him  of  the  demand  for  his  services.  His  reply  was  :  "  All 
that  is  left  of  me  belongs  to  my  country,  and  in  two  weeks  I  shall  be 
on  horseback,  if  there  is  a  spark  of  life  in  my  body.  In  the  mean 
time,  raise  the  standard  at  Fayetteville,  and  let  every  man  that  can 
strike  a  blow  gather  around  it."  They  told  him  the  treasury  was 
empty,  and  they  had  no  means  of  equipping  an  army.  But  he  had, 
not  long  before,  converted  a  portion  of  his  property  into  cash,  and 
had,  at  the  time,  seven  thousand  dollars  on  deposit  at  Nashville  ;  that 
sum  he  directed  the  Governor  to  use  in  the  purchase  of  provisions  and 
arms.  His  fortune,  as  well  as  his  life,  was  at  the  public  disposal. 

He  took  the  field  according  to  promise,  and  then  commenced  that 
career  of  magnificent  victories  which  made  his  name  immortal.  He 
pushed  into  the  heart  of  the  enemy's  country  with  a  celerity  of  march 
which  Caesar  could  not  have  outstripped,  exerted  a  vigilance  that  Fa- 
bius  never  exceeded,  encountered  difficulties  that  Hannibal  might 
have  been  proud  to  overcome,  and  met  his  foes  in  battle  with  an  im 
petuous  courage  that  would  have  done  honor  to  the  personal  prowess 
of  Alexander. 

I  will  not  weary  you  with  a  detail  of  his  military  operations.  The 
victorious  battles  of  Emuckfaw,  Talladega,  and  the  Horseshoe,  are 
not  forgotten,  and  they  never  will  be.  Let  no  one  suppose  that  these 
victories  were  won  by  the  force  of  superior  numbers  and  discipline 
over  a  weak  and  barbarous  enemy.  The  enemy  were  savages,  it  is 
true,  but  altogether  they  outnumbered  the  troops  under  Jackson,  they 
were  well  armed  and  provided,  they  were  thoroughly  acquainted  with 
the  country,  they  had  ample  scope  for  their  characteristic  cunning  and 
treachery,  they  were  led  by  the  most  distinguished  braves  of  their  re 
spective  nations,  they  were  united  and  organized  by  the  skill  of  Te- 
cumseh,  and  their  fierce  passions  were  roused  to  madness  by  his  fiery 
eloquence.  Never  since  America  was  discovered  have  the  red  men 
mustered  in  more  formidable  force  against  the  whites,  never  did  their 
bloodthirsty  nature  impel  them  to  deeds  of  greater  cruelty,  and  never 
did  they  receive  such  a  terrible  scourging  for  their  crimes. 

But  Jackson  met  other  obstacles,  such  as  could  not  have  been  sur 
mounted  by  any  man  but  himself.  He  had  counted  on  the  co-opera 
tion  of  some  troops  belonging  to  another  division  :  the  officer  who 
commanded  them  refused  to  join  him,  or  even  to  protect  the  posts  in 
his  rear.  He  moved  on,  notwithstanding.  The  provisions  purchased 
with  his  own  money  were  exhausted,  and  the  State  failed  to  supply 


196  EULOGIES. 

him  with  more.  He  was  undismayed  even  by  the  prospect  of  famine. 
Almost  in  the  presence  of  the  enemy,  a  mutiny  broke  out  among  the 
militia,  who  claimed  their  discharge,  and  left  the  camp  in  a  bodv.  The 
general  drew  up  the  volunteers  across  the  road  and  met  the  rebellious 
troops  with  fixed  bayonets  and  muskets  loaded.  They  knew  they  had 
to  deal  with  a  man  who  never  threatened  in  vain,  and  they  returned 
submissively  to  their  quarters.  The  ringleaders  were  tried,  con 
demned,  and  executed.  By  his  seasonable  and  just  severity,  as  well  as 
by  his  singular  address  in  allaying  their  fears  and  exciting  their  hopes, 
he  extinguished  every  sign  of  discontent,  and,  in  less  than  twelve 
hours,  they  were  more  attached  to  their  commander  than  ever.  But 
this  change  of  sentiment  in  the  militia  was  unknown  to  the  volunteers. 
During  the  night,  the  spirit  of  insubordination  began  to  pervade  them 
too,  and,  supposing  that  no  force  could  be  found  to  prevent  their  de 
parture,  they  started  next  morning  for  home.  Their  astonishment 
may  be  guessed  at  when  they  found  the  militia  drawn  up  on  the  same 
spot  which  they  themselves  had  occupied  the  day  before,  in  the  same 
attitude,  and  headed  by  the  same  unshrinking  spirit.  They  could  do 
nothing  but  promise  submission  and  beg  for  mercy.  The  Governor  of 
Tennessee,  hearing  of  these  things,  unable  to  furnish  the  provisions, 
and  despairing  of  Jackson's  success  in  a  condition  so  utterly  forlorn, 
directed  him  to  abandon  the  expedition  and  commence  a  retreat.  He 
answered  that  he  could  do  anything  but  turn  his  back  on  the  enemies 
of  his  country,  but  if  he  ever  did  that,  it  would  only  be  to  lure  them 
into  a  battle.  All  this  while  his  men  were  literally  starving ;  the 
general's  own  table  was  served  with  but  a  single  dish,  and  that  was 
acorns.  They  implored  his  permission  to  go  home,  and  he  promised 
that,  if  they  would  remain  with  him  only  two  days  longer,  and  if  no 
provisions  could  be  had  in  that  time,  he  would  make  no  further  oppo 
sition  to  their  return.  The  time  having  expired,  and  his  word  being 
pledged,  he  could  no  longer  forbid  their  going.  But  he  told  them  that 
if  only  two  men  of  all  his  army  would  remain,  he  himself  would  stay 
and  die  on  the  ground.  One  hundred  and  twenty-five  volunteered  to 
stay,  and  with  them  he  determined  to  maintain  his  position.  The  rest 
took  up  their  homeward  march,  but  had  scarcely  gone  before  the  long- 
expected  supplies  came  in.  The  general  pursued  and  overtook  them ; 
but  when  he  ordered  them  to  return,  they  declared  their  unanimous 
resolution  to  disobey  him.  Here,  then,  was  another  mutiny — not  in 
half  his  army,  but  the  whole  of  it — one  that  he  was  obliged  to  deal 
with  alone,  and  on  the  instant.  He  placed  himself  in  front,  and  de 
clared  that,  if  they  proceeded  farther,  it  must  be  over  his  dead  body. 
By  way  of  showing  that  his  life  would  be  dearly  sold,  he  unslung  a 
carbine  from  his  shoulder  and  announced  his  determination  to  shoot 
the  first  man  who  advanced  a  step.  The  muskets  along  the  line  were 
leveled  at  his  breast ;  one  only  was  fired,  and  the  bullet  whistled  over 


EULOGIES.  197 

his  head.  He  sat  in  his  saddle  unmoved.  "  Return,"  said  he,  "  to 
your  duty,  or  take  the  life  of  your  general ;  you  have  your  choice." 
Overawed  by  his  undaunted  boldness,  and  struck  with  admiration  at 
his  noble  bearing,  they  felt  their  old  affections  revive  in  full  force. 
They  wavered  a  moment,  then  grounded  their  arms,  and  told  him  that 
wherever  he  would  lead  they  were  ready  to  follow.  It  was  with  these 
same  troops,  and  after  all  these  occurrences,  that  he  made  that  gallant 
fight  at  Enotochopco,  gained  the  decisive  victory  at  Emuckfaw,  and 
won  the  bloody  day  at  Tohopeka. 

The  next  year  was  the  defense  of  Fort  Bowyer — the  taking  of  Pen- 
sacola — and,  in  the  latter  part  of  it,  some  preparations  for  the  battle 
of  New  Orleans. 

If  there  be  one  point  or  period  in  his  history  which  needs  no  com 
ment  at  all,  it  is  that  which  relates  to  the  latter  achievement.  The 
American  people  understand  the  debt  of  gratitude  they  incurred  that 
day,  and  their  children  have  all  its  history  by  heart.  The  finest  army 
that  ever  landed  on  American  soil ;  thoroughly  equipped  ;  trained 
for  years  under  the  eye  of  Wellington  ;  composed  of  veterans,  who  had 
met  the  conqueror  of  Europe  and  driven  his  legions  back  ;  who  had 
crimsoned  the  waters  of  the  Douro  with  the  blood  of  their  enemies  ; 
who  had  tasted  plunder  at  the  storming  of  Badajoz  ;  who  had  reveled 
in  licentiousness  at  St.  Sebastian,  and  whose  mercenary  valor  was  here 
again  to  be  rewarded  with  "  beauty  and  booty  " — against  such  a  force, 
more  than  fourteen  thousand  strong,  Jackson,  with  half  the  number 
of  raw  levies,  was  to  defend  the  richest  city  of  the  Union,  which,  if 
taken,  would  have  given  to  the  enemy  the  command  of  the  Mississippi 
and  the  whole  West  from  the  Gulf  of  Mexico  to  the  heart  of  Pennsyl 
vania.  And  that  city  was  not  a  Gibraltar  or  a  Quebec — it  had  no 
natural  advantages  of  position — no  military  works — no  wall — no 

"...  high-raised  battlement, 
Strong  tower,  or  moated  gate." 

It  was  situated  on  an  open  plain,  with  a  hundred  inlets  to  be  guarded, 
and  all  means  of  defense  were  yet  to  be  created  by  the  genius  and  en 
ergy  of  its  defender.  No  wonder  the  Legislature  of  Louisiana  were 
in  favor  of  surrendering  the  city,  instead  of  making  a  stand  for  its 
defense  under  circumstances  which  seemed  so  entirely  hopeless. 

But,  in  Jackson's  vocabulary  the  word  surrender  was  never  found. 
The  foremost  division  of  the  enemy  was  scarcely  within  striking  dis 
tance  when  he  was  upon  them.  His  effective  force  at  that  time  was 
hardly  fifteen  hundred  men.  But  they  were  men  who  knew  their 
leader,  and  whose  hearts  were  filled  with  a  portion  of  his  own  spirit. 
With  that  little  band  he  attacked  a  camp  guarded  by  seven  thousand  of 
an  army  that  called  and  believed  itself  invincible.  The  bloody  fight 


198  EULOGIES. 

that  ensued,  indecisive  as  it  was,  would  stand  among  the  proudest 
achievements  of  American  arms,  if  its  brilliancy  had  not  been  dimmed 
by  the  great  battle  which  closed  the  war  ;  and  if  the  eighth  of  January 
could  be  stricken  from  the  calendar,  the  twenty-third  of  December 
would  be  celebrated  forever.  But  the  eighth  of  January  did  come, 
and  with  it  the  sun  of  Jackson's  military  glory  rose  to  its  zenith.  He 
was  everywhere  hailed  as  the  great  deliverer  of  the  country.  Grati 
tude  and  joy  welled  forth  from  the  popular  heart  as  from  a  fountain, 
and  when  the  sage  of  Monticello  invoked  "  honor  "  upon  him  who  had 
filled  the  measure  of  his  country's  glory  and  fame,  the  sentiment  was 
heard  and  responded  to  from  one  end  of  the  Union  to  the  other.  Con 
sider  what  he  had  to  do,  and  how  he  did  it,  and  then  let  your  own 
hearts  tell  you  which  was  right,  the  people  who  met  him  with  accla 
mations  of  joy  and  delight,  or  the  judge  who  fined  him  a  thousand 
dollars. 

I  will  not  pause  upon  the  minor  incidents  of  that  great  event,  nor 
stop  to  defend  his  proclamation  of  martial  law.  The  nation's  judg 
ment  on  this  part  of  his  conduct  has  been  given  in  more  forms  than 
one.  The  far-famed  Seminole  campaign  must  be  passed  in  silence. 
His  triumphant  vindication  of  himself  from  the  charges  growing  out 
of  his  service  during  that  expedition  will  be  remembered  by  his  friends, 
and  I  hope  his  opponents  may  never  forget  it.  Time  would  fail  us,  if 
we  should  recount  the  scenes  through  which  he  passed,  from  the  close 
of  his  military  career  to  the  commencement  of  his  first  presidential 
term.  Admiration  would,  indeed,  love  to  linger  on  his  thorough  vin 
dication  of  justice  as  Governor  of  Florida,  on  his  manly  bearing  when 
the  people  named  him  as  their  candidate  for  the  highest  station  in  the 
world,  as  well  as  on  his  dignified  submission,  when  he  saw  another 
placed  in  the  great  office  which  the  affectionate  gratitude  of  the  people 
had  designated  as  the  reward  of  his  own  services. 

When  finally  he  was  placed  at  the  head  of  the  republic,  not  only 
by  the  will  of  the  people,  but  according  to  the  forms  of  the  Constitu 
tion,  he  showed  the  world,  whose  gaze  was  on  him,  that  he  was  not  a 
mere  "  military  chieftain."  The  courage,  which  never  cowered  before 
an  enemy,  was  indeed  there  :  the  iron  will,  the  fiery  soul,  the  heart  of 
steel,  and  the  nerve  of  adamant,  were  with  him  still.  But  there  also 
was  the  comprehensive  intellect,  the  rapid  power  of  combination,  the 
intuitive  perception  of  whatever  was  noble  or  good — above  all,  there 
was  still  the  enthusiastic  patriotism,  which  dedicated  his  whole  being 
to  the  country  that  he  loved — loved  with  all  his  fervor  of  devotion. 

When  the  Maysville  Road  Bill  passed  both  Houses  of  Congress  by 
immense  majorities,  developing  a  system  at  war  with  the  Constitution, 
but  in  perfect  keeping  with  the  wild  spirit  of  speculation  and  reckless 
expenditure  which  afterward  swept  so  many  of  the  States  to  financial 
ruin,  it  was  his  sagacity  that  saw  the  distant  danger,  and  his  firmness 


EULOGIES.  199 

that  applied  the  remedy.  He  crushed  without  hesitation  a  measure 
which  had  the  support  of  all  parties.  No  truckling  to  popular  errors  ; 
no  wooing  of  powerful  interests  ;  no  base  appeal  to  the  sordid  passions  ; 
no  baiting  of  traps  to  catch  the  favor  of  the  people,  ever  disgraced  his 
manly  statesmanship.  He  was  as  ready  to  stem  the  torrent  when  it 
was  wrong,  as  to  swim  with  the  tide  when  it  set  in  the  true  direction. 
Upon  this  part  of  his  history,  time  and  reflection  have  put  all  right, 
and  the  only  thing  now  left  to  excite  our  special  wonder  is,  that  oth 
ers,  who  passed  for  wise  men  in  their  day  and  generation,  should  not 
have  seen  the  subject  in  as  true  a  light  as  he  did. 

Nullification  reared  its  head — the  Union  was  to  be  severed,  because 
one  of  the  States  was  displeased  with  a  law.  Jackson  was  at  his  post. 
He  never  stopped  to  parley  with  the  danger,  or  to  bandy  words  with 
the  wrong-doers.  He  spoke  not  in  the  language  of  expostulation,  ad 
vice,  or  entreaty,  but  in  the  decisive  and  unequivocal  tone  of  one  who 
knew  that  it  was  his  duty  and  his  right  to  command.  "  The  Union," 
said  he,  "must  and  it  SHALL  be  preserved"  ;  and  from  that  moment 
nullification  was  doomed. 

But  another  foe,  more  deadly  and  dangerous  than  any  he  had  yet 
encountered,  was  still  to  be  grappled  with.  A  great  corporation  with 
a  capital  of  thirty-five  millions  of  dollars  ;  wielding  debts  to  the 
amount  of  seventy  millions,  against  men  of  all  classes,  professions, 
and  grades  ;  intimately  connected  with  all  the  ramifications  of  private 
business  ;  and  holding  the  public  funds  of  the  Government  in  its  cus 
tody — demanded  his  signature  to  a  new  charter.  He  knew  that  the 
corporators  had  misbehaved  themselves  grossly — how  grossly  I  shall 
not  stop  to  tell — and  he  made  no  compromise  with  wrong.  In  the 
Constitution  he  had  sworn  to  preserve,  protect,  and  defend,  he  found 
no  warrant  for  such  a  law  ;  and  he  kept  his  oath.  But  his  veto  was 
scarcely  read,  before  the  bank  bounded  into  the  arena,  armed  to  the 
teeth,  and  followed  by  a  host  of  friends.  To  cripple  her  power  and 
save  the  country  from  loss,  he  removed  the  public  deposits,  a  measure 
which  cooled  many  of  his  friends,  while  it  fairly  infuriated  his  ene 
mies.  The  combat  deepened  every  hour.  To  an  eye  unable  to  pene 
trate  the  sources  of  his  influence,  it  seemed  that  he  was  about  to  be 
crushed  at  last.  The  bank  suddenly  withdrew- her  discounts,  curtailed 
her  circulation,  pressed  her  debtors  to  the  wall ;  and  the  consequence 
was,  that  formal  committees,  from  every  part  of  the  Union,  waited  on 
the  President,  by  thousands,  with  bitter  complaints  of  the  distress 
which  they  had  been  taught  to  believe  was  brought  upon  the  country 
by  him.  Two  thirds  of  the  presses,  three  fourths  of  the  orators  and 
writers  of  the  nation  were  exerting  all  their  powers  of  invective,  argu 
ment,  and  ridicule  to  bring  contempt  and  hatred  upon  his  character. 
The  Senate,  containing  "  the  garnered  talent  of  the  nation  " — the  tri 
bunal  to  which  he  had  a  right  to  look  for  a  calm  decision,  for  they 


200  EULOGIES. 

were  his  judges  in  the  last  resort — accused  and  convicted  him  without 
a  hearing.  Physical  force  began  to  be  talked  of,  anonymous  letters 
warned  him  that  assassins  were  watching  for  his  life  ;  "armed  com 
mittees  of  ten  thousand  "were  proposed  ;  an  "  encampment  upon  Capi 
tol  Hill"  was  threatened;  and  "  a  revolution,  bloodless  as  yet"  was 
announced  to  the  public  an  the  highest  authority. 

In  all  this  storm  of  passionate  declamation — amid  this  "loud  roar 
of  foaming  calumny  " — his  firm  soul  never  blenched  even  for  an  in 
stant.  He  changed  no  principle,  he  retracted  no  opinion,  he  surren 
dered  no  truth,  he  gave  up  not  one  inch  of  the  high  ground  he  had 
taken.  In  this  the  sorest  trial  his  faith  had  ever  endured,  "he  bated 
no  jot  of  heart  or  hope,"  but  kept  right  onward  in  the  path  of  his 
duty.  The  test  was  too  severe  for  his  summer  friends,  and  they  fell 
away  from  his  support  by  scores  and  hundreds  ;  but  he  was 

"...  constant  as  the  northern  star, 
Of  whose  true,  fixed,  and  resting  quality 
There  is  no  fellow  in  the  firmament." 

The  electric  chain  of  communication  between  him  and  the  people 
was  still  unbroken,  and  whatever  link  of  that  chain  was  struck  by  his 
master-hand,  the  response  was  a  deep  thrill  of  sympathy  from  the 
hearts  of  the  million.  His  steady  and  fearless  voice  was  heard  through 
his  messages,  above  the  din  of  the  conflict,  and  it  went  over  the  land 
like  the  tones  of  a  trumpet,  ringing  full  on  the  ear,  banishing  doubt, 
inspiring  confidence,  and  swelling  the  heart  with  a  foretaste  of  victory. 
His  friends,  who  had  doubted  his  wisdom,  began  to  wonder  at  their 
own  want  of  discernment,  and  the  great  old  chief,  who  had  led  them 
through  so  many  contests,  was  proved  to  be  right  once  more. 

He  was  followed  to  his  retirement  by  a  warmth  of  popular  affec 
tion  which  had  never  been  bestowed  on  any  but  one  man  before.  His 
declining  years  were  surrounded  with  all 

"  Those  things  that  should  accompany  old  age 
As  honor,  love,  obedience,  troops  of  friends." 

He  lived  long  enough  to  see  his  most  cherished  hopes  accomplished — 
his  principles  stamped  upon  the  public  mind — his  own  example  made 
the  standard  of  political  orthodoxy.  He  saw  the  people  rejudge  the 
judgment  of  his  adversaries,  and  expunge  their  sentence  of  condem 
nation  from  the  record.  He  beheld  the  nation  rising  as  one  man  and 
tendering  to  him  a  restitution  of  the  fine  imposed  on  him  for  saving 
the  country. 

He  had  fulfilled  all  the  purposes  of  his  mission  to  the  earth  ;  he 
had  finished  the  work  which  God  had  given  him  to  do  ;  and  it  was 
his  time  to  die — time  that  his  great  spirit  should  be  freed  from  the 


EULOGIES.  201 

fretting  chain  which  bound  it  to  the  lower  world — time  that  his  labors 
should  cease  and  his  hallowed  rest  begin.  He  closed  his  long  list  of 
triumphs  with  the  crowning  triumph  of  the  Christian's  hope,  and 
ended  his  conquering  career  by  another  conquest,  which  robbed  the 
grave  of  its  victory,  and  took  the  sting  from  death. 

All  that  is  mortal  of  Jackson  has  died.  But  his  fame  lives  and 
will  live  forever.  America  will  never  forget  her  defender,  the  people 
will  never  fail  to  think  with  gratitude  of  their  truest  friend,  the 
human  race  will  never  cease  to  pay  the  homage  of  profound  admira 
tion  to  the  benefactor  of  the  world. 

In  the  character  of  a  private  gentleman,  no  man  of  his  time  was 
more  admired  by  those  who  knew  him  than  General  Jackson.  All, 
who  have  ever  seen  him,  concur  in  bearing  testimony  to  the  charms 
of  his  manner  and  the  courtly  grace  of  his  deportment.  This  was  not 
the  result  of  an  artificial  polish  ;  his  politeness  flowed  naturally  from 
a  kind,  true  heart. 

In  all  the  relations  of  life  he  was  sternly  and  inflexibly  honest.  No 
broken  covenants,  no  violated  obligations,  rested  on  his  conscience. 
When  yet  a  comparatively  young  man,  and  before  his  fame  became,  as 
it  afterward  was,  the  public  property  of  the  nation,  the  misconduct  of 
one  whom  he  had  trusted,  made  him,  not  legally,  but  as  he  thought 
morally,  liable  for  an  amount  of  debts  equal  to  the  value  of  all  his 
property.  Although  he  had  not  made  the  contracts,  and  had  received 
no  benefit  from  them,  and  the  law  would  have  acquitted  him  from  all 
obligation  to  pay  them,  he  nevertheless  gave  up  his  stately  home  to 
the  creditors  of  his  false  friend,  retired  with  his  family  to  a  rude  log 
cabin  in  a  new  clearing,  and,  rather  than  stain  his  character  with  an 
act  of  apparent  wrong,  his  resolute  soul  faced  poverty  without  a  mur 
mur. 

His  education  was  not  of  the  kind  usually  supposed  necessary  to 
make  what  is  called  an  accomplished  scholar.  He  had  not  those  im 
mense  acquirements,  which,  in  some  men,  overlay  the  mind  and  master 
the  power  of  original  thought.  His  researches  were  not  for  ornament, 
but  for  use  ;  it  was  not  the  flowers  of  literature,  but  the  fruit,  that 
attracted  him.  His  understanding  was  eminently  practical,  and  stored, 
not  with  fictions,  but  with  truths.  While  history,  ancient  and  mod 
ern,  sacred  and  profane,  was  familiar  to  him,  it  is,  I  suppose,  extremely 
probable  that  he  never  read  a  novel  in  his  life.  His  style  was  logical, 
vigorous,  dignified,  and  characterized  by  the  lucid  order  and  clear 
reasoning  which  mark  the  production  of  a  master — it  was  the  elo 
quence  of  truth,  spoken  by  one  who  both  felt  and  understood  it. 
Some  of  his  orders,  messages,  and  protests  are  not  exceeded,  in  the 
impressive  force  of  their  diction,  by  any  public  papers  in  the  world, 
except  only  by  the  Declaration  of  Independence. 

As  a  lawyer,  no  man  ever  understood  better  than  he  did  the  great 


202  EULOGIES. 

secret  of  success  in  an  honest  community.  I  mean  the  moral  rectitude 
which  always  supports  justice  and  always  frowns  upon  fraud.  It  may 
be  that  he  was  no  great  adept  in  the  mere  technical  tricks  of  the  trade. 
We  do  not  hear  that  he  ever  caused  an  innocent  man  to  be  executed, 
or  cheated  public  justice  out  of  a  guilty  victim.  He  had  none  of  the 
glowing  speech  which  could  make  the  worse  appear  the  better  reason  ; 
and  no  truly  great  man  ever  had  it.  He  "affected  not  the  devilish 
skill  of  outbaffling  right,  nor  aimed  at  the  shameful  glory  of  making  a 
bad  cause  good."  But  he  could  present  truth  in  the  proper  attrac 
tions  of  its  own  beauty,  and  falsehood  shrank  away  from  the  piercing 
scrutiny  of  his  investigation.  As  a  science,  he  had  thoroughly  mas 
tered  the  law.  Those  great  principles  which  have  their  home  in  the 
honest  heart ;  the  wisdom  which  tries  all  things  by  the  standard  of 
natural  justice ;  the  unclouded  steadiness  of  mental  vision,  which 
looks  quite  through  the  mists  of  sophistry  ;  the  resistless  vigor  of 
mind,  which  brushes  away  the  artificial  impediments  that  obstruct  the 
road  to  truth  ;  the  luminous  understanding  which  sends  a  stream  of 
light  into  every  dark  corner  where  fraud  might  lurk  to  hide  itself  ;  the 
sterling  integrity,  which  braves  all  danger  in  the  cause  of  justice— all 
these  he  had,  and  they  made  him  a  lawyer  great  in  the  truest  sense  of 
the  word.  These  qualities  it  was  that  enabled  him,  when  his  foot  was 
barely  on  the  threshold  of  business,  to  stand  unawed  before  the  pistols 
of  seventy  desperadoes,  rather  than  soil  his  hands  by  undertaking  their 
false  defense.  They  gave  dignity  and  grace  to  his  judicial  character 
and  made  his  public  papers  unanswerable.  They  extorted  from  the 
Chief-Justice  of  the  United  States  the  declaration  that  he  was  the 
profoundest  constitutional  lawyer  in  the  country  ;  and  compelled  the 
most  distinguished  members  of  Congress,  when  the  Seminole  cam 
paign  was  discussed,  and  after  his  defense  was  read,  to  admit  that 
Jackson,  in  the  woods  of  Alabama,  and  with  no  authorities  to  consult, 
understood  and  explained  the  rules  of  international  law  better  than  any 
man  at  Washington  with  the  aid  of  all  the  books  in  the  public  library. 
Among  the  military  leaders  of  this  country,  whose  talents  were 
developed  by  the  last  war,  Jackson  stands  alone  and  peerless,  without 
a  rival  to  come  near  him.  He  had  all  the  qualities  of  a  great  com 
mander — courage,  vigilance,  activity,  and  skill.  His  attack  was  the 
kingly  swoop  of  the  eagle  on  his  prey,  and  his  defense  was  like  that 
of  the  roused  lion  when  he  stands  at  bay  in  his  native  jungle.  His 
character  in  this  department  is  indeed  sui -generis  altogether.  The 
history  of  the  world  contains  no  record  of  any  man  who  has  done  so 
much,  and  done  it  so  well,  with  means  so  inadequate.  He  was  not  a 
"fortunate  soldier."  All  the  circumstances  with  which  he  was  sur 
rounded  were  adverse.  But  his  daring  spirit  made  Fortune  bend  to 
him,  and  compelled  her  to  bless  his  standard  with  a  success  she  never 
meant  for  him. 


EULOGIES.  203 

It  is  not,  however,  upon  his  military  services  that  his  fame  rests 
principally.  His  defense  of  our  Constitution  deserves,  and  posterity 
will  pay  to  it,  a  higher  praise  than  his  deeds  of  arms  are  entitled  to. 
For  him  peace  had  her  victories  far  more  renowned  than  those  of  war. 
They  elicited  from  him  higher  qualities  of  mind  and  heart.  The  nerve 
that  meets  an  enemy  on  the  field  is  comparatively  a  cheap  virtue,  for 
thousands  in  all  ages  have  had  it.  But  it  is  not  once  in  a  century 
that  a  man  is  born  with  the  high  moral  courage  which  fits  him  to  take 
the  lead  in  a  great  reform.  He  who  supports  political  truth  must 
indeed  be  well  armed  in 

"  The  strong  breast- plate  of  a  heart  untainted," 

if  he  can  endure  the  lingering  warfare  which  will  be  waged  against 
his  reputation  by  that  "wild  and  many-weaponed  throng"  which 
always  opposes  the  progress  of  liberal  principles.  This  priceless  gift 
was  bestowed  on  Jackson  in  all  its  perfection,  and  it  placed  him  in 
the  very  front  of  the  world's  march.  He  saw  further  into  futurity 
than  any  man  of  his  time,  and  his  was  the  fearless  honesty  to  tell  his 
countrymen  what  he  did  see.  He  had  a  heart  full  of  hope  and  manly 
trust  in  the  people  ;  and  they  were  true  to  him,  because  he  was  true  to 
them.  He  pursued  wise  ends  by  fair  means,  and  in  doing  so  he  knew 
fear  only  by  name.  No  abuse  was  too  sacred,  nor  no  fraud  too  popu 
lar,  for  the  unsparing  hand  of  his  reform.  He  was  no  demagogue 
to  fawn  upon  the  masses  and  flatter  their  prejudices.  He  spoke  to 
them  like  a  friend,  for  he  was  their  friend — their  devoted  and  faithful 
friend — but  he  told  them  plain  truth,  whether  they  liked  to  hear  it  or 
not.  He  knew  that  no  appeal  for  evil  purposes  could  be  made  to  any 
people  so  successfully  as  one  addressed  to  their  covetousness,  and  that 
no  deity  had  votaries  so  faithful  or  so  numerous  as  those  of  Mammon, 
the  meanest  and  "  the  least  erect  of  all  the  spirits  that  fell."  He  saw 
the  frightful  superstition  which  made  strong  men  bow  before  the 
shrine  of  that  base  idol,  covering  the  nation  as  with  a  dark  pall,  and 
weaning  the  hearts  of  the  people  from  the  worship  of  liberty  and  jus 
tice.  Did  he  encourage  their  strong  delusion  by  joining  in  the  adora 
tion  ?  No ;  he  struck  at  the  false  god  in  his  very  temple,  and  took 
his  priests  by  the  beard  even  between  the  horns  of  the  altar. 

He  has  been  called  ambitious.  In  one  sense  this  accusation  of  his 
enemies  coincides  exactly  with  the  praises  of  his  friends.  He  was 
ambitious.  But  his  was  the  ambition  of  a  noble  nature — an  affec 
tionate  yearning  to  be  loved  by  his  country  as  he  loved  her — an  in 
tense  desire  to  leave  behind  him  a  name  hallowed  by  its  association 
with  great  and  beneficent  actions — and  to  sleep  at  last  in  a  grave 
made  sacred  by  the  veneration  of  the  wise  and  the  virtuous.  Let 
those  who  object  to  such  ambition  make  their  worst  of  it.  But,  if 


204:  EULOGIES. 

any  one  supposes  that  his  life  was  at  all  influenced  by  the  vulgar  love 
of  power  for  its  own  sake,  or  by  the  sordid  desire  to  pocket  the  emol 
uments  of  public  station,  let  him  remember  this  :  that  there  never 
was  a  period,  from  Jackson's  arrival  at  the  age  of  twenty-one  till  the 
day  of  his  death,  when  he  might  not  have  been  in  the  public  service 
if  he  had  so  chosen  ;  yet  he  spent  more  than  half  his  time  in  private 
retirement.  He  never  in  his  life,  upon  any  occasion,  solicited  the 
people  or  any  of  their  appointing  agents  for  a  place.  His  countrymen 
pressed  upon  him  eleven  different  offices,  without  any  procurement  of 
his.  Some  of  them  he  accepted  with  reluctance,  and  all  of  them  he 
resigned  before  the  terms  expired,  except  one  :  that  one  he  surren 
dered  back  to  the  people  after  having  held  it  as  long  as  Washington 
held  it  before  him. 

Others  have  said  that  he  was  overbearing  and  tyrannical — a  con- 
temner  of  all  authority.  No  one  can  deny  that  he  was  a  man  of  strong 
will,  impetuous  passions,  and  fiery  temper.  But  he  was  most  emphati 
cally  a  law-abiding  man.  If  there  ever  lived  one  who  would  go  fur 
ther  to  defend  the  Constitution  and  laws  of  his  country,  or  more  cheer 
fully  shed  his  blood  to  save  them  from  violation,  neither  history  nor 
tradition  has  told  us  who  he  was.  There  is  not  a  solitary  act  of  his 
life  among  the  many  adduced  to  support  this  charge,  which  is  not 
capable  of  a  most  clear  and  satisfactory  defense.  It  is  certain  that, 
when  engaged  in  the  public  service,  he  never  suffered  any  one  to  in 
terfere  with  his  plans.  When  he  formed  them,  he  executed  them,  and 
if  it  became  necessary  to  do  so,  he  was  ready  to  stake,  not  only  his 
mortal  existence,  but  his  character  (which  was  infinitely  dearer  to 
him)  on  the  issue.  It  is  this  unequaled  moral  courage  which  lifts  him 
so  high  above  common  great  men.  Others  have  been  willing  to  die 
for  their  country,  but  he  periled  life,  fortune,  and  fame  together. 
And  let  it  never  be  forgotten  that  these  things  were  uniformly  done 
in  defense  of  public  liberty— it  was  always  for  his  country,  never  for 
himself,  that  he  "  took  the  responsibility."  Malice  will  not  dare  to 
say  that  the  smallest  taint  of  selfishness  ever  mingled  with  any  of 
these  transactions,  and  the  blindest  folly  is  not  so  stupid  as  to  believe 
that  his  conduct  in  them  could  have  been  swayed  by  motives  arising 
out  of  his  personal  interest.  The  strongest  case  ever  cited  against 
him  will  serve  as  an  example.  When  he  was  defending  New  Orleans, 
he  was  surrounded  with  spies  and  traitors,  and  to  prevent  them  from 
communicating  with  the  enemy  or  stirring  up  sedition  in  his  camp,  it 
was  necessary  to  proclaim  martial  law — necessary,  according  to  the 
testimony  of  all  witnesses — absolutely  and  imperatively  necessary,  ac 
cording  to  the  admission  of  Judge  Hall  himself.  By  that  measure, 
the  country  could  be  saved  ;  without  it,  there  was  no  hope.  Under 
these  circumstances,  the  temporary  restraint  upon  Louallier  and  Hall 
were  trifles  light  as  air  in  his  eyes  ;  for  he  weighed  them  in  the  scale 


EULOGIES.  205 

with  a  nation's  liberty  for  ages.  But  when  he  had  won  the  great  bat 
tle,  when  his  brows  were  wreathed  with  victory,  when  his  country 
was  safe  and  he  alone  was  in  danger,  he  bowed  his  laureled  head  to 
the  authority  of  the  court  with  a  submission  as  lowly  as  the  hum 
blest — nay,  he  protected  the  judge  from  the  indignation  of  the  mul 
titude  while  he  pronounced  the  most  infamous  sentence  that  ever 
stained  a  record. 

But  I  have  done.  It  was,  perhaps,  unnecessary  to  say  so  much. 
The  character  of  Jackson  is  becoming  better  and  better  understood 
every  day.  Our  children  will  marvel  what  manner  of  men  their 
fathers  were,  among  whom  there  could  be  a  difference  of  opinion 
about  the  merits  of  such  a  man.  The  time  is  speeding  rapidly  on 
when  he  will  be  appreciated  by  all,  without  distinction  of  party  or 
sect ;  and  then  it  will  not  be  necessary  to  couple  his  defense  with  his 
eulogy.  His  fame,  like  a  mighty  river,  will  grow  wider  and  deeper 
as  it  rolls  downward.  The  wreaths  on  other  brows  may  fall  away, 
leaf  after  leaf  withered  and  faded,  but  time  will  only  add  a  greener 
freshness  to  the  everlasting  verdure  of  his  laurels.  In  the  constella 
tion  of  talents  and  worth,  which  adorns  the  firmament  of  American 
glory,  there  is  not  one  star  before  whose  bright  astrology  the  future 
friend  of  human  liberty  will  kneel  with  a  more  fervent  devotion.  In 
all  coming  time,  wherever  a  true  American  shall  be  found,  if  there  be 
one  pulse  within  his  free-born  bosom  that  beats  more  proudly  than 
another,  he  will  feel  it  throb  when  he  hears  the  name  of  ANDREW 
JACKSON. 


ON  THE  DEATH  OF  JUDGE  GIBSON. 

IT  is  unnecessary  to  say  that  every  surviving  member  of  the  court 
is  deeply  grieved  by  the  death  of  Mr.  Justice  Gibson.  In  the  course 
of  nature  it  was  not  to  be  expected  that  he  could  live  much  longer,  for 
he  had  attained  the  ripe  age  of  seventy-six.  But  the  blow,  though  not 
a  sudden,  was  nevertheless  a  severe  one.  The  intimate  relations,  per 
sonal  and  official,  which  we  all  bore  to  him,  would  have  been  suffi 
cient  to  account  for  some  emotion,  even  if  he  had  been  an  ordinary 
man.  But  he  was  the  Nestor  of  the  bench,  whose  wisdom  inspired 
the  public  mind  with  confidence  in  our  decisions.  By  this  bereave 
ment  the  court  has  lost  what  no  time  can  repair ;  for  we  shall  never 
look  upon  his  like  again. 

We  regarded  him  more  as  a  father  than  a  brother.  None  of  us  ever 
saw  the  Supreme  Court  before  he  was  in  it ;  and  to  some  of  us  his 
character  as  a  great  judge  was  familiar  even  in  childhood.  The  ear 
liest  knowledge  of  the  law  we  had  was  derived  in  part  from  his  lumi- 


206  EULOGIES. 

nous  expositions  of  it.  He  was  a  judge  of  the  Common  Pleas  before 
the  youngest  of  us  was  born,  and  was  a  member  of  this  court  long  be 
fore  the  oldest  was  admitted  to  the  bar.  He  sat  here  with  twenty-six 
different  associates,  of  whom  eighteen  preceded  him  to  the  grave.  For 
nearly  a  quarter  of  a  century  he  was  Chief -Justice,  and,  when  he  was 
nominally  superseded  by  another,  as  the  head  of  the  court,  his  great 
learning,  venerable  character,  and  overshadowing  reputation,  still 
made  him  the  only  chief  whom  the  hearts  of  the  people  would  know. 
During  the  long  period  of  his  judicial  labors  he  discussed  and  decided 
innumerable  questions.  His  opinions  are  found  in  no  less  than  seventy 
volumes  of  the  regular  reports,  from  2  Sergeant  &  Rawle  to  7  Harris. 

At  the  time  of  his  death  he  had  been  longer  in  office  than  any  con 
temporary  judge  in  the  world  ;  and  in  some  points  of  character  he  had 
not  his  equal  on  the  earth.  Such  vigor,  clearness,  and  precision  of 
thought  were  never  before  united  with  the  same  felicity  of  diction. 
Brougham  has  sketched  Lord  Stowell  justly  enough  as  the.  greatest 
judicial  writer  that  England  could  boast  of,  for  force  and  beauty  of 
style.  He  selects  a  sentence,  and  calls  on  the  reader  to  admire  the  re 
markable  elegance  of  its  structure.  I  believe  that  Judge  Gibson  never 
wrote  an  opinion  in  his  life  from  which  a  passage  might  not  be  taken, 
stronger  as  well  as  more  graceful  in  its  turn  of  expression,  than  this 
which  is  selected  with  so  much  care,  by  a  most  zealous  friend,  from  all 
of  Lord  Stowell's. 

His  written  language  was  a  transcript  of  his  mind.  It  gave  the 
world  the  very  form  and  pressure  of  his  thoughts.  It  was  accurate, 
because  he  knew  the  exact  boundaries  of  the  principles  he  discussed. 
His  mental  vision  took  in  the  whole  outline  and  all  the  details  of  the 
case,  and  with  a  bold  and  steady  hand  he  painted  what  he  saw.  He 
made  others  understand  him,  because  he  understood  himself. 

"  .  .  .  cui  lecta  potenter  erit  res, 
Nee  facundia  deseret  hunc,  nee  luciclus  ordo." 

His  style  was  rich,  but  he  never  turned  out  of  his  way  for  figures 
of  speech.  He  never  sacrificed  sense  to  sound,  or  preferred  ornament 
to  substance.  If  he  reasoned  much  by  comparison,  it  was  not  to  make 
his  composition  brilliant,  but  clear.  He  spoke  in  metaphors  often ; 
not  because  they  were  sought,  but  because  they  came  to  his  mind  un 
bidden.  The  same  vein  of  happy  illustration  ran  through  his  conver 
sation  and  his  private  letters.  I  was  most  of  all  struck  with  it  in  a 
careless  memorandum,  intended,  when  it  was  written,  for  no  eye  but 
his  own.  He  never  thought  of  display,  and  seemed  totally  unconscious 
that  he  had  the  power  to  make  any. 

His  words  were  always  precisely  adapted  to  the  subject.  He  said 
neither  more  nor  less  than  just  the  thing  he  ought.  He  had  one 
faculty  of  a  great  poet— that  of  expressing  a  thought  in  language 


EULOGIES.  207 

which  could  never  afterward  be  paraphrased.  When  a  legal  principle 
passed  through  his  hande,  he  sent  it  forth  clothed  in  a  dress  which 
fitted  it  so  exactly  that  nobody  ever  presumed  to  give  it  any  other. 
Almost  universally  the  syllabus  of  his  opinion  is  a  sentence  from  it 
self  ;  and  the  most  heedless  student,  in  looking  over  Wharton's  Digest, 
can  select  the  cases  in  which  Gibson  delivered  the  judgment,  as  readily 
as  he  would  pick  out  gold  coins  from  among  coppers.  For  this  reason 
it  is,  that  though  he  was  the  least  voluminous  writer  of  the  court,  the 
citations  from  him  at  the  bar  are  more  numerous  than  from '  all  the 
rest  put  together.  Yet  the  men  who  shared  with  him  the  labors  and 
responsibilities  of  this  tribunal  (of  course  I  am  not  referring  to  any 
who  are  now  here)  stood  among  the  foremost  in  the  country  for  learn 
ing  and  ability.  To  be  their  equal  was  an  honor  which  few  could  at 
tain  ;  to  excel  them  was  a  most  pre-eminent  distinction. 

The  dignity,  richness,  and  purity  of  his  written  opinions  was  by 
no  means  his  highest  title  to  admiration.  The  movements  of  his  mind 
were  as  strong  as  they  were  graceful.  His  periods  not  only  pleased 
the  ear,  but  sank  into  the  mind.  He  never  wearied  the  reader,  but  he 
always  exhausted  the  subject.  An  opinion  of  his  was  an  unbroken 
chain  of  logic,  from  beginning  to  end.  His  argumentation  was  always 
characterized  by  great  power,  and  sometimes  it  rose  into  irresistible 
energy,  dashing  opposition  to  pieces  with  force  like  that  of  a  batter 
ing-ram. 

He  never  missed  the  point  even  of  a  cause  which  had  been  badly 
argued.  He  separated  the  chaff  from  the  wheat  almost  as  soon  as  he 
got  possession  of  it.  The  most  complicated  entanglement  of  fact  and 
law  would  be  reduced  to  harmony  under  his  hands.  His  arrangement 
was  so  lucid  that  the  dullest  mind  could  follow  him  with  that  intense 
pleasure  which  we  all  feel  in  being  able  to  comprehend  the  workings 
of  an  intellect  so  manifestly  superior. 

Yet  he  committed  errors.  It  is  wonderful  that  in  the  course  of  his 
long  service  he  did  not  commit  more.  A  few  were  caused  by  inatten 
tion  ;  a  few  by  want  of  time ;  a  few  by  preconceived  notions  which  led 
him  astray.  When  he  did  throw  himself  into  the  wrong  side  of  a 
cause,  he  usually  made  an  argument  which  it  was  much  easier  to  over 
rule  than  to  answer.  With  reference  to  his  erroneous  opinions,  he 
might  have  used  the  words  of  Virgil,  which  he  quoted  so  happily  in 
Eakin  vs.  Raub  (12  Ser.  &  R. )  for  another  purpose  : 

u  ...  Si  Pergama  dextr& 
Defendi  possent,  etiara  Me  defensa  fuissent." 

But  he  was  of  all  men  the  most  devoted  and  earnest  lover  of  truth 
for  its  own  sake.  When  subsequent  reflection  convinced  him  that  he 
had  been  wrong,  he  took  the  first  opportunity  to  acknowledge  it.  He 


208  EULOGIES. 

was  often  the  earliest  to  discover  his  own  mistakes,  as  well  as  the  fore 
most  to  correct  them. 

He  was  inflexibly  honest.  The  judicial  ermine  was  as  unspotted 
when  he  laid  it  aside  for  the  habiliments  of  the  grave  as  it  was  when 
he  first  assumed  it.  I  do  not  mean  to  award  him  merely  that  common 
place  integrity  which  it  is  no  honor  to  have,  but  simply  a  disgrace  to 
want.  He  was  not  only  incorruptible,  but  scrupulously,  delicately, 
conscientiously  free  from  all  willful  wrong,  either  in  thought,  word,  or 
deed. 

Next,  after  his  wonderful  intellectual  endowments,  the  benevolence 
of  his  heart  was  the  most  marked  feature  of  his  character.  His  was  a 
most  genial  spirit ;  affectionate  and  kind  to  his  friends,  and  magnani 
mous  to  his  enemies.  Benefits  received  by  him  were  engraved  on  his 
memory  as  on  a  tablet  of  brass ;  injuries  were  written  in  sand.  He 
never  let  the  sun  go  down  upon  his  wrath.  A  little  dash  of  bitterness 
in  his  nature  would,  perhaps,  have  given  a  more  consistent  tone  to  his 
character,  and  greater  activity  to  his  mind.  He  lacked  the  quality 
which  Dr.  Johnson  admired.  He  was  not  a  good  hater. 

His  accomplishments  were  very  extraordinary.  He  was  born  a 
musician,  and  the  natural  talent  was  highly  cultivated.  He  was  a 
connoisseur  in  painting  and  sculpture.  The  whole  round  of  English 
literature  was  familiar  to  him.  He  was  at  home  among  the  ancient 
classics.  He  had  a  perfectly  clear  perception  of  all  the  great  truths  of 
natural  science.  He  had  studied  medicine  carefully  in  his  youth  and 
understood  it  well.  His  mind  absorbed  all  kinds  of  knowledge  with 
scarcely  an  effort. 

Judge  Gibson  was  well  appreciated  by  his  fellow-citizens  :  not  so 
highly  as  he  deserved  ;  for  that  was  scarcely  possible.  But  admiration 
of  his  talents  and  respect  for  his  honesty  were  universal  sentiments. 
This  was  strikingly  manifested  when  he  was  elected,  in  1851,  notwith 
standing  his  advanced  age,  without  partisan  connections,  with  no  em 
phatic  political  standing,  and  without  manners,  habits,  or  associations 
calculated  to  make  him  popular  beyond  the  circle  that  knew  him  inti 
mately.  With  all  these  disadvantages,  it  is  said  he  narrowly  escaped 
what  might  have  been  a  dangerous  distinction — a  nomination  on  both 
of  the  opposing  tickets.  Abroad  he  has,  for  very  many  years,  been 
thought  the  great  glory  of  his  native  State. 

Doubtless  the  whole  Commonwealth  will  mourn  his  death  ;  we  all 
have  good  reason  to  do  so.  The  profession  of  the  law  has  lost  the 
ablest  of  its  teachers,  this  court  the  brightest  of  its  ornaments,  and 
the  people  a  steadfast  defender  of  their  rights,  so  far  as  they  were 
capable  of  being  protected  by  judicial  authority.  For  myself,  I  know 
no  form  of  words  to  express  my  deep  sense  of  the  loss  we  have  suf 
fered.  I  can  most  truly  say  of  him  what  was  said,  long  ago,  concern 
ing  one  of  the  few  among  mortals  who  were  yet  greater  than  he  :  "I 


EULOGIES.  209 

did  love  the  man,  and  do  honor  his  memory,  on  this  side  idolatry,  as 
much  as  any." 

As  a  token  of  respect  for  -the  deceased,  it  is  ordered  that  the  court 
do  now  adjourn. 


ON  THE  DEATH  OF  SENATOR  CARPENTER.. 

THE  American  bar  has  not  often  suffered  so  great  a  misfortune  as 
the  death  of  Mr.  Carpenter.  He  was  cut  off  when  he  was  rising  as 
rapidly  as  at  any  previous  period.  In  the  noontide  of  his  labors  the 
night  came,  wherein  no  man  can  work.  To  what  height  his  career 
might  have  reached  if  he  had  lived  and  kept  his  health  another  score 
of  years,  can  now  be  only  a  speculative  question.  But  when  we  think 
of  his  great  wisdom  and  his  wonderful  skill  in  the  forensic  use  of  it, 
together  with  his  other  qualities  of  mind  and  heart,  we  can  not  doubt 
that  in  his  left  hand  would  have  been  uncounted  riches  and  abundant 
honor,  if  only  length  of  days  had  been  given  to  his  right.  As  it  was, 
he  distanced  his  contemporaries,  and  became  the  peer  of  the  greatest 
among  those  who  had  started  long  before  him. 

The  intellectual  character  of  no  professional  man  is  harder  to  ana 
lyze  than  his.  He  was  gifted  with  an  eloquence  sui  generis.  It  con 
sisted  of  free  and  fearless  thought  wreaked  upon  expression  powerful 
and  perfect.  It  was  not  fine  rhetoric,  for  he  seldom  resorted  to  poetic 
illustration  ;  nor  did  he  make  a  parade  of  clinching  his  facts.  He 
often  warmed  with  feeling,  but  no  bursts  of  passion  deformed  the  sym 
metry  of  his  argument.  The  flow  of  his  speech  was  steady  and  strong 
as  the  current  of  a  great  river.  Every  sentence  was  perfect ;  every 
word  was  fitly  spoken ;  each  apple  of  gold  was  set  in  its  picture  of 
silver.  This  singular  faculty  of  saying  everything  just  as  it  ought  to 
be  said  was  not  displayed  only  in  the  Senate  and  in  the  courts  ;  every 
where,  in  public  and  private,  on  his  legs,  in  his  chair,  and  even  lying 
on  his  bed,  he  always  "talked  like  a  book." 

I  have  sometimes  wondered  how  he  got  this  curious  felicity  of  dic 
tion.  He  knew  no  language  but  his  mother-tongue.  The  Latin  and 
Greek  which  he  learned  in  boyhood  faded  entirely  out  of  his  memory 
before  he  became  a  full-grown  man.  At  West  Point  he  was  taught 
French,  and  spoke  it  fluently  ;  in  a  few  years  afterward  he  forgot  every 
word  of  it.  But  perhaps  it  was  not  lost ;  a  language  (or  any  kind  of 
literature),  though  forgotten,  enriches  the  mind  as  a  crop  of  clover 
plowed  down  fertilizes  the  soil. 

His  youth  and  early  manhood  was  full  of  the  severest  trials.  After 
leaving  the  Military  Academy  he  studied  law  in  Vermont,  and  was 
admitted,  but  conscientiously  refused  to  practice  without  further 

14 


210  EULOGIES. 

preparation.  He  went  to  Boston,  where  he  was  most  generously  taken 
into  the  office  of  Mr.  Choate.  He  soon  won  not  only  the  good  opinion 
of  that  very  great  man,  but  his  unqualified  admiration  and  unbounded 
confidence.  With  the  beneficence  of  an  elder  brother,  Choate  paid  his 
way  through  the  years  of  his  toilsome  study,  and  afterward  supplied 
him  with  the  means  of  starting  in  the  West.  The  bright  prospect 
which  opened  before  him  in  Wisconsin  was  suddenly  overshadowed  by 
an  appalling  calamity.  His  eyes  gave  way,  and  trusting  to  the  treat 
ment  of  a  quack,  his  sight  was  wholly  extinguished.  For  three  years 
he  was  stone-blind,  "the  world  by  one  sense  quite  shut  out."  Totally 
disabled  and  compassed  round  with  impenetrable  darkness,  he  lost 
everything  except  his  courage,  his  hope,  and  the  never-failing  friend 
ship  of  his  illustrious  preceptor.  Supported  by  these,  he  was  taken  to 
an  infirmary  at  New  York,  where,  after  a  long  time,  his  vision  was 
restored.  Subsequent  to  these  events,  and  still  under  the  auspices  of 
Mr.  Choate,  he  returned  to  Wisconsin  and  fairly  began  his  professional 
life. 

It  would  be  interesting  to  know  what  effect  upon  his  mental  char 
acter  was  produced  by  his  blindness.  I  believe  it  elevated,  refined, 
and  strengthened  all  his  faculties.  Before  that  time  much  reading- 
had  made  him  a  very  full  man  ;  when  reading  became  impossible,  re 
flection  digested  his  knowledge  into  practical  wisdom.  He  perfectly 
arranged  his  storehouse  of  facts  and  cases,  and  pondered  intently  upon 
the  first  principles  of  jurisprudence.  Thinking  with  all  his  might, 
and  always  thinking  in  English,  he  forgot  his  French,  and  acquired 
that  surprising  vigor  and  accuracy  of  English  expression  which  com 
pel  us  to  admit  that,  if  he  was  not  a  classical  scholar,  he  was  himself  a 
classic  of  most  original  type. 

He  was  not  merely  a  brilliant  advocate,  learned  in  the  law,  and 
deeply  skilled  in  its  dialectics  ;  in  the  less  showy  walks  of  the  profes 
sion  he  was  uncommonly  powerful.  Whether  drudging  at  the  busi 
ness  of  his  office  as  a  common-law  attorney  and  equity  pleader,  or 
shining  as  leader  in  a  great  nisi  prius  cause,  he  was  equally  admirable, 
ever  ready  and  perfectly  suited  to  the  place  he  was  filling.  This  ca 
pacity  for  work  of  all  kinds  was  the  remarkable  part  of  his  character. 
With  his  hands  full  of  a  most  multifarious  practice  he  met  political 
duties  of  great  magnitude.  As  a  Senator  and  party-leader  he  had 
burdens  and  responsibilities  under  which,  without  more,  a  strong  man 
might  have  sunk.  But  this  man's  shoulders  seemed  to  feel  no  weight 
that  was  even  inconvenient.  If  Lord  Brougham  did  half  as  much 
labor  in  quantity  and  variety,  he  deserved  all  the  admiration  he  won 
for  versatility  and  patience. 

Mr.  Carpenter's  notions  of  professional  ethics  were  pure  and  high- 
toned.  He  never  acted  upon  motives  of  lucre  or  malice.  He  would 
take  what  might  be  called  a  bad  case,  because  he  thought  that  every 


EULOGIES.  211 

man  should  have  a  fair  trial ;  but  he  would  use  no  falsehood  to  gain 
it ;  he  was  true  to  the  court  as  well  as  to  the  client.  He  was  the  least 
mercenary  of  all  lawyers ;  a  large  proportion  of  his  business  was  done 
for  nothing. 

Outside  of  his  family  he  seldom  spoke  of  his  religious  opinions. 
He  was  not  accustomed  to  give  in  his  experience — never  at  all  to  me. 
He  firmly  believed  in  the  morality  of  the  New  Testament,  and  in  no 
other  system.  If  you  ask  whether  he  practiced  it  perfectly,  I  ask  in 
return,  Who  has  ?  Certainly  not  you  or  I.  He  was  a  gentle  censor 
of  our  faults  ;  let  us  not  be  rigid  with  his.  One  thing  is  certain  :  his 
faith  in  his  own  future  was  strong  enough  to  meet  death  as  calmly  as 
he  would  expect  the  visit  of  a  friend.  Upward  of  a  year  since  his 
physicians  told  him  that  he  would  certainly  die  in  a  few  months,  and 
he  knew  they  were  right ;  but,  with  that  inevitable  doom  coming  visibly 
nearer  every  day,  he  went  about  his  business  with  a  spirit  as  cheerful 
as  if  he  had  a  long  lease  of  life  before  him. 

I  think  for  certain  reasons  that  my  personal  loss  is  greater  than 
the  rest  of  you  have  suffered.  But  that  is  a  "fee  grief  due  to  my  par 
ticular  breast. "  It  is  enough  to  say  for  myself  that  I  did  love  the 
man  in  his  lifetime,  and  do  honor  his  memory  now  that  he  is  dead. 


POLITICAL  ESSAYS  AND  LETTERS. 


OBSERVATIONS    ON    TERRITORIAL    SOVEREIGNTY.— RE 
PLIES  TO   SENATOR  DOUGLAS. 

i. 

EVEKY  one  knows  that  Mr.  Douglas,  the  Senator  from  Illinois,  has 
written  and  printed  an  elaborate  essay,  comprising  thirty-eight  col 
umns  of  "Harper's  Magazine,"  in  which  he  has  undertaken  to  point 
out  the  "dividing-line  between  Federal  and  local  authority."'  Very 
many  persons  have  glanced  over  its  paragraphs  to  catch  the  leading 
ideas  without  loss  of  time,  and  some  few  have  probably  read  it  with 
care. 

Those  who  dissent  from  the  doctrines  of  this  paper  owe  to  its 
author,  if  not  to  his  arguments,  a  most  respectful  answer.  Mr.  Doug 
las  is  not  the  man  to  be  treated  with  a  disdainful  silence.  His  ability 
is  a  fact  unquestioned ;  his  public  career,  in  the  face  of  many  disad 
vantages,  has  been  uncommonly  successful ;  and  he  has  been  for  many 
years  a  working,  struggling  candidate  for  the  presidency.  He  is, 
moreover,  the  Corypheus  of  his  political  sect,  the  founder  of  a  new 
school,  and  his  disciples  naturally  believe  in  the  infallible  verity  of  his 
words  as  a  part  of  their  faith. 

The  style  of  the  article  is,  in  some  respects,  highly  commendable. 
It  is  entirely  free  from  the  vulgar  clap-trap  of  the  stump,  and  has  no 
vain  adornment  of  classical  scholarship.  But  it  shows  no  sign  of  the 
eloquent  Senator ;  it  is  even  without  the  logic  of  the  great  debater. 
Many  portions  of  it  are  very  obscure.  It  seems  to  be  an  unsuccessful 
effort  at  legal  precision,  like  the  writing  of  a  judge  who  is  trying  in 
vain  to  give  good  reasons  for  a  wrong  decision  on  a  question  of  law 
which  he  has  not  quite  mastered. 

With  the  help  of  Messrs.  Seward  and  Lincoln,  he  has  defined  ac 
curately  enough  the  platform  of  the  so-called  Republican  party  ;  and 
he  does  not  attempt  to  conceal  his  conviction  that  their  doctrines  are 
in  the  last  degree  dangerous.  They  are,  most  assuredly,  full  of  evil 
and  saturated  with  mischief.  The  "irrepressible  conflict,"  which 


POLITICAL  ESSAYS  AND  LETTERS.  213 

they  speak  of  with  so  much  pleasure  between  the  "  opposing  and  en 
during  forces  "  of  the  Northern  and  Southern  States,  will  be  fatal,  not 
merely  to  the  peace  of  the  country,  but  to  the  existence  of  the  Gov 
ernment  itself.  Mr.  Douglas  knows  this,  and  he  knows  also  that  the 
Democratic  party  is  the  only  power  which  is  or  can  be  organized  to 
resist  the  Republican  forces  or  oppose  their  hostile  march  upon  the 
capital.  He  who  divides  and  weakens  the  friends  of  the  country  at 
such  a  crisis  in  her  fortunes  assumes  a  very  grave  responsibility. 

Mr.  Douglas  separates  the  Democratic  party  into  three  classes,  and 
describes  them  as  follow  : 

"  1.  Those  who  believe  that  the  Constitution  of  the  United  States 
neither  establishes  nor  prohibits  slavery  in  the  States  or  Territories  be 
yond  the  power  of  the  people  legally  to  control  it,  but  '  leaves  the  peo 
ple  thereof  perfectly  free  to  form  and  regulate  their  domestic  institu 
tions  in  their  own  way,  subject  only  to  the  Constitution  of  the  United 
States.' 

"  2.  Those  who  believe  that  the  Constitution  establishes  slavery  in 
the  Territories,  and  withholds  from  Congress  and  the  Territorial  Legis 
lature  the  power  to  control  it,  and  who  insist  that,  in  the  event  the 
Territorial  Legislature  fails  to  enact  the  requisite  laws  for  its  protection, 
it  becomes  the  imperative  duty  of  Congress  to  interpose  its  authority 
and  furnish  such  protection. 

"3.  Those  who,  while  professing  to  believe  that  the  Constitution 
establishes  slavery  in  the  Territories  beyond  the  power  of  Congress  or 
the  Territorial  Legislature  to  control  it,  at  the  same  time  protest 
against  the  duty  of  Congress  to  interfere  for  its  protection  ;  but  insist 
that  it  is  the  duty  of  the  judiciary  to  protect  and  maintain  slavery  in 
the  Territories  without  any  law  upon  the  subject." 

We  give  Mr.  Douglas  the  full  benefit  of  his  own  statement.  This 
is  his  mode  of  expressing  those  differences,  which,  he  says,  disturb  the 
harmony  and  threaten  the  integrity  of  the  American  Democracy. 
These  passages  should,  therefore,  be  most  carefully  considered. 

The  first  class  is  the  one  to  which  he  himself  belongs,  and  to  both 
the  others  he  is  equally  opposed.  He  has  no  right  to  come  between 
the  second  and  third  class.  If  the  difference  which  he  speaks  of  does 
exist  among  his  opponents,  it  is  their  business,  not  his,  to  settle  it  or 
fight  it  out.  We  shall  therefore  confine  ourselves  to  the  dispute  be 
tween  Mr.  Douglas  and  his  followers  on  the  one  hand,  and  the  rest  of 
the  Democratic  party  on  the  other,  presuming  that  he  will  be  willing 
to  observe  the  principle  of  non-intervention  in  all  matters  with  which 
he  has  no  concern. 

We  will  invert  the  order  in  which  he  has  discussed  the  subject,  and 
endeavor  to  show — 

1.  That  he  has  not  correctly  stated  the  doctrine  held  by  his  oppo 
nents  ;  and, 

2.  That  his  own  opinions,  as  given  by  himself,  are  altogether  un 
sound. 


214:  POLITICAL  ESSAYS  AND  LETTERS. 

I.  He  says  that  a  certain  portion  of  the  Democratic  party  believe, 
or  profess  to  believe,  that  the  Constitution  establishes  slavery  in  the 
Territories,  and  insist  that  it  is  the  duty  of  the  judiciary  to  maintain 
it  there  without  any  law  on  the  subject.  We  do  not  charge  him  with 
any  intention  to  be  unfair ;  but  we  assert  that  he  has  in  fact  done 
wrong  to,  probably,  nineteen  twentieths  of  the  party,  by  attempting 
to  put  them  on  grounds  which  they  never  chose  for  themselves. 

The  Constitution  certainly  does  not  establish  slavery  in  the  Terri 
tories,  nor  anywhere  else.  Nobody  in  this  country  ever  thought  or 
said  so.  But  the  Constitution  regards  as  sacred  and  inviolable  all  the 
rights  which  a  citizen  may  legally  acquire  in  a  State.  If  a  man  ac 
quires  property  of  any  kind  in  a  State,  and  goes  with  it  into  a  Terri 
tory,  he  is  not  for  that  reason  to  be  stripped  of  it.  Our  simple  and 
plain  proposition  is,  that  the  legal  owner  of  a  slave  or  other  chattel 
may  go  with  it  into  a  Federal  Territory  without  forfeiting  his  title. 

Who  denies  the  truth  of  this,  and  upon  what  ground  can  it  be  con 
troverted  ?  The  reasons  which  support  it  are  very  obvious  and  very 
conclusive.  As  a  jurist  and  a  statesman,  Mr.  Douglas  ought  to  be 
familiar  with  them,  and  there  was  a  time  when  he  was  supposed  to 
understand  them  very  well.  We  will  briefly  give  him  a  few  of  them  : 

1.  It  is  an  axiomatic  principle  of  public  law  that  a  right  of  prop 
erty,  a  private  relation,  condition,  or  status,  lawfully  existing  in  one 
State  or  country,  is  not  changed  by  the  mere  removal  of  the  parties  to 
another  country,  unless  the  law  of  that  other  country  be  in  direct  con 
flict  with  it.     For  instance  :  A  marriage  legally  solemnized  in  France 
is  binding  in  America  ;  children  born  in  Germany  are  legitimate  here 
if  they  are  legitimate  there ;  and  a  merchant  who  buys  goods  in  New 
York,  according  to  the  laws  of  that  State,  may  carry  them  to  Illinois 
and  hold  them  there  under  his  contract.     It  is  precisely  so  with  the 
status  of  a  negro  carried  from  one  part  of  the  United  States  to  an 
other  ;  the  question  of  his  freedom  or  servitude  depends  on  the  law  of 
the  place  where  he  came  from,  and  depends  on  that  alone,  if  there  be 
no  conflicting  law  at  the  place  to  which  he  goes  or  is  taken.    The  Fed 
eral  Constitution,  therefore,  recognizes  slavery  as  a  legal  condition  wher 
ever  the  local  governments  have  chosen  to  let  it  stand  unabolished,  and 
regards  it  as  illegal  wherever  the  laws  of  the  place  have  forbidden  it. 
A  slave  being  property  in  Virginia,  remains  property  ;  and  his  master 
has  all  the  rights  of  a  Virginia  master  wherever  he  may  go,  so  that  he 
go  not  to  any  place  where  the  local  law  comes  in  conflict  with  his  right. 
It  will  not  be  pretended  that  the  Constitution  itself  furnishes  to  the 
Territories  a  conflicting  law.    It  contains  no  provision  that  can  be  tor 
tured  into  any  semblance  of  a  prohibition. 

2.  The  dispute  on  the  question  whether  slavery  or  freedom  is  local 
or  general  is  a  mere  war  of  words.     The  black  race  in  this  country  is 
neither  bond  nor  free  by  virtue  of  any  general  law.     That  portion  of 


POLITICAL  ESSA  YS  AND  LETTERS.  215 

it  which  is  free  is  free  by  virtue  of  some  local  regulation,  and  the  slave 
owes  service  for  a  similar  reason.  The  Constitution  and  laws  of  the 
United  States  simply  declare  that  everything  done  in  the  premises  by 
the  State  governments  is  right,  and  they  shall  be  protected  in  carrying 
it  out.  But  free  negroes  and  slaves  may  both  find  themselves  outside 
of  any  State  jurisdiction,  and  in  a  Territory  where  no  regulation  has 
yet  been  made  on  the  subject.  There  the  Constitution  is  equally  im 
partial.  It  neither  frees  the  slave  nor  enslaves  the  freeman.  It  re 
quires  both  to  remain  in  statu  quo,  until  the  status  already  impressed 
upon  them  by  the  law  of  their  previous  domicile  shall  be  changed  by 
some  competent  local  authority.  What  is  competent  local  authority 
in  a  Territory  will  be  elsewhere  considered. 

3.  The  Federal  Constitution  carefully  guards  the  rights  of  private 
property  against  the  Federal  Government  itself,  by  declaring  that  it 
shall  not  be  taken  for  public  use  without  compensation,  nor  without 
due  process  of  law.     Slaves  are  private  property,  and  every  man  who 
has  taken  an  oath  of  fidelity  to  the  Constitution  is  religiously,  morally, 
and  politically  bound  to  regard  them  as  such.     Does  anybody  suppose 
that  a  Constitution  which  acknowledges  the  sacredness  of  private  prop 
erty  so  fully  would  wantonly  destroy  that  right,  not  by  any  words  that 
are  found  in  it,  but  by  mere  implication  from  its  general  principles  ? 
It  might  as  well  be  asserted  that  the  general  principles  of  the  Consti 
tution  gave  Lane  and  Montgomery  a  license  to  steal  horses  in  the  valley 
of  the  Osage. 

4.  The  Supreme  Court  of  the  United  States  has  decided  the  ques 
tion.     After  solemn  argument  and  careful  consideration,  that  august 
tribunal  has  announced  its  opinion  to  be,  that  a  slaveholder,  by  going 
into  a  Federal  Territory,  does  not  lose  the  title  he  had  to  his  negro  in 
the  State  from  which  he  came.     In  former  times  a  question  of  con 
stitutional  law  once  decided  by  the  Supreme  Court  was  regarded  as 
settled  by  all,  except  that  little  band  of  ribald  infidels,  who  meet  peri 
odically  at  Boston,  to  blaspheme  the  religion  and  plot  rebellion  against 
the  laws  of  the  country.     The  leaders  of  the  so-called  Eepublican 
party  have  lately  been  treading  close  on  the  heels  of  their  abolition 
brethren  ;  but  it  is  devoutly  to  be  hoped  that  Mr.  Douglas  has  no  in 
tention  to  follow  their  example.     In  case  he  is  elected  President,  he 
must  see  the  laws  faithfully  executed.    Does  he  think  he  can  keep  that 
oath  by  fighting  the  judiciary  ? 

5.  The  legislative  history  of  the  country  shows  that  all  the  great 
statesmen  of  former  times  entertained  the  same  opinion,  and  held  it 
so  firmly  that  they  did  not  even  think  of  any  other.     It  was  univers 
ally  taken  for  granted  that  a  slave  remained  a  slave,  and  a  freeman  a 
freeman,  in  the  new  Territories,  until  a  change  was  made  in  their  con 
dition  by  some  positive  enactment.     Nobody  believed  that  a  slave 
might  not  have  been  taken  to  and  kept  in  the  Northwest  Territory,  if 


216  POLITICAL  ESSAYS  AND  LETTERS. 

the  Ordinance  of  1787  or  some  other  regulation  had  not  been  made  to 
prohibit  it.  The  Missouri  restriction  of  1820  was  imposed  solely  be 
cause  it  was  understood  (probably  by  every  member  of  that  Congress) 
that,  in  the  absence  of  a  restriction,  slave  property  would  be  as  lawful  in 
the  eye  of  the  Constitution  above  36°  30'  as  below  ;  and  all  agreed  that 
the  mere  absence  of  a  restriction  did,  in  fact,  make  it  lawful  below 
the  compromise  line. 

6.  It  is  right  to  learn  wisdom  from  our  enemies.    The  Eepublicans 
do  not  point  to  any  express  provision  of  the  Constitution,  nor  to  any 
general  principle  embraced  in  it,  nor  to  any  established  rule  of  law, 
which  sustains  their  views.     The  ablest  men  among  them  are  driven, 
by  stress  of  necessity,  to  hunt  for  arguments  in  a  code  unrevealed,  un 
written,  and  undefined,  which  they  put  above  the  Constitution  or  the 
Bible,  and  call  it  "higher  law."     The  ultra-abolitionists  of  New  Eng 
land  do  not  deny  that  the  Constitution  is  rightly  interpreted  by  the 
Democrats,  as  not  interfering  against  slavery  in  the  Territories  ;  but 
they  disdain  to  obey  what  they  pronounce  to  be  "an  agreement  with 
death  and  a  covenant  with  hell." 

7.  What  did  Mr.  Douglas  mean  when  he  proposed  and  voted  for 
the  Kansas-Nebraska  Bill  repealing  the  Missouri  restriction  ?    Did  he 
intend  to  tell  Southern  men  that,  notwithstanding  the  repeal  of  the 
prohibition,  they  were  excluded  from  those  Territories  as  much  as  ever  ? 
Or  did  he  not  regard  the  right  of  a  master  to  his  slave  as  perfectly 
good  whenever  he  got  rid  of  the  prohibition  ?    Did  he,  or  anybody 
else  at  that  time,  dream  that  it  was  necessary  to  make  a  positive  law 
in  favor  of  the  slaveholder  before  he  could  go  there  with  safety  ? 

To  ask  these  questions  is  to  answer  them.  The  Kansas-Nebraska 
Bill  was  not  meant  as  a  delusion  or  a  snare.  It  was  well  understood 
that  the  repeal  alone  of  the  restriction  against  slavery  would  throw 
the  country  open  to  everything  which  the  Constitution  recognized  as 
property. 

We  have  thus  given  what  we  believe  to  be  the  opinions  held  by  the 
great  body  of  the  Democratic  party ;  namely,  that  the  Federal  Con 
stitution  does  not  establish  slavery  anywhere  in  the  Union ;  that  it 
permits  a  black  man  to  be  either  held  in  servitude  or  made  free,  as  the 
local  law  shall  decide  ;  and  that,  in  a  Territory  where  no  local  law  on 
the  subject  has  been  enacted,  it  keeps  both  the  slave  and  the  free  negro 
in  the  status  already  impressed  upon  them,  until  it  shall  be  changed 
by  competent  local  authority.  We  have  seen  that  this  is  sustained  by 
the  reason  of  the  thing,  by  a  great  principle  of  public  law,  by  the 
words  of  the  Constitution,  by  a  solemn  decision  of  the  Supreme  Court, 
by  the  whole  course  of  our  legislation,  by  the  concession  of  our  politi 
cal  opponents,  and,  finally,  by  the  most  important  act  in  the  public 
life  of  Mr.  Douglas  himself. 

Mr.  Douglas  imputes  another  absurdity  to  his  opponents  when  he 


POLITICAL  ESSAYS  AND  LETTERS.  217 

charges  them  with  insisting  that  "it  is  the  duty  of  the  judiciary  to 
protect  and  maintain  slavery  in  the  Territories,  without  any  law  upon 
the  subject."  The  judge  who  acts  without  law  acts  against  law;  and 
surely  no  sentiment  so  atrocious  as  this  was  ever  entertained  by  any 
portion  of  the  Democratic  party.  The  right  of  a  master  to  the  ser 
vices  of  his  slave  in  a  Territory  is  not  against  law  nor  without  law, 
but  in  full  accordance  witli  law.  If  the  law  be  against  it,  we  are  all 
against  it.  Has  not  the  emigrant  to  Nebraska  a  legal  right  to  the  ox- 
team,  which  he  bought  in  Ohio,  to  haul  him  over  the  plains  ?'  Is  not 
his  title  as  good  to  it  in  the  Territory  as  it  was  in  the  State  where  he 
got  it  ?  And  what  should  be  said  of  a  judge  who  tells  him  that  he  is 
not  protected,  or  that  he  is  maintained,  in  the  possession  of  his  prop 
erty,  "without  any  law  upon  the  subject  "  ? 

II.  We  had  a  right  to  expect  from  Mr.  Douglas  at  least  a  clear  and 
intelligible  definition  of  his  own  doctrine.  We  are  disappointed.  It 
is  hardly  possible  to  conceive  anything  more  difficult  to  comprehend. 
We  will  transcribe  it  again,  and  do  what  can  be  done  to  analyze  it : 

"  Those  who  believe  that  the  Constitution  of  the  United  States 
neither  establishes  nor  prohibits  slavery  in  the  States  or  Territories  be 
yond  the  power  of  the  people  legally  to  control  it,  but  '  leaves  the  peo 
ple  thereof  perfectly  free  to  form  and  regulate  their  domestic  institu 
tions  in  their  own  way,  subject  only  to  the  Constitution  of  the  United 
States.'" 

The  Constitution  neither  establishes  nor  prohibits  slavery  in  the 
States  or  Territories.  If  it  be  meant  by  this  that  the  Constitution 
does  not,  proprio  vigore,  either  emancipate  any  man's  slave,  or  create 
the  condition  of  slavery  and  impose  it  on  free  negroes,  but  leaves  the 
question  of  every  black  man's  status,  in  the  Territories  as  well  as  in 
the  States,  to  be  determined  by  the  local  law,  then  we  admit  it,  for 
it  is  the  very  same  proposition  which  we  have  been  trying  to  prove. 
But  if,  on  the  contrary,  it  is  to  be  understood  as  an  assertion  that  the 
Constitution  does  not  permit  a  master  to  keep  his  slave,  or  a  free 
negro  to  have  his  liberty,  in  all  parts  of  the  Union  where  the  local  law 
does  not  interfere  to  prevent  it,  then  the  error  is  not  only  a  very  grave 
one,  but  it  is  also  absurd  and  self-contradictory. 

The  Constitution  neither  establishes  nor  prohibits  slavery  in  the 
States  or  Territories  beyond  the  power  of  the  people  legally  to  control  it. 
This  is  sailing  to  Point  No-Point  again.  Of  course,  a  subject  which 
is  legally  controlled  can  not  be  beyond  the  power  that  controls  it. 
But  the  question  is,  What  constitutes  legal  control,  and  when  are  the 
people  of  a  State  or  Territory  in  a  condition  to  exercise  it  ? 

The  Constitution  of  the  United  States  .  .  .  leaves  the  people  per 
fectly  free,  .  .  .  and  subject  only  to  the  Constitution  of  the  United 


218  POLITICAL  ESSAYS  AND  LETTERS. 

States.  This  carries  us  round  a  full  circle,  and  drops  us  precisely  at 
the  place  of  beginning.  That  the  Constitution  leaves  everybody  sub 
ject  to  the  Constitution  is  most  true.  We  are  far  from  denying  it. 
We  never  heard  it  doubted,  and  expect  we  never  will.  But  the  state 
ment  of  it  proves  nothing,  defines  nothing,  and  explains  nothing. 
It  merely  darkens  the  subject,  as  words  without  meaning  always  do. 

But,  notwithstanding  all  this  circuity  of  expression  and  consequent 
opaqueness  of  meaning  in  the  magazine  article  of  Mr.  Douglas,  we 
think  we  can  guess  what  his  opinions  are  or  will  be  when  he  comes  to 
reconsider  the  subject.  He  will  admit  (at  least  he  will  not  undertake 
to  deny)  that  the  status  of  a  negro,  whether  of  servitude  or  freedom, 
accompanies  him  wherever  he  goes,  and  adheres  to  him  in  every  part 
of  the  Union  until  he  meets  some  local  law  which  changes  it. 

It  will  also  be  agreed  that  the  people  of  a  State,  through  their  Leg 
islature,  and  the  people  of  a  Territory,  in  the  Constitution  which  they 
may  frame  preparatory  to  their  admission  as  a  State,  can  regulate  and 
control  the  condition  of  the  subject  black  race  within  their  respective 
jurisdictions,  so  as  to  make  them  bond  or  free. 

But  here  we  come  to  the  point  at  which  opinions  diverge.  Some 
insist  that  no  citizen  can  be  deprived  of  his  property  in  slaves,  or  in 
anything  else,  except  by  the  provision  of  a  State  Constitution  or  by  the 
act  of  a  State  Legislature ;  while  others  contend  that  an  unlimited 
control  over  private  rights  may  be  exercised  by  a  Territorial  Legislature 
as  soon  as  the  earliest  settlements  are  made. 

So  strong  are  the  sentiments  of  Mr.  Douglas  in  favor  of  the  latter 
doctrine,  that  if  it  be  not  established,  he  threatens  us  with  Mr.  Sew- 
ard's  "irrepressible  conflict/*'  which  shall  end  only  with  the  universal 
abolition  or  the  universal  dominion  of  slavery.  On  the  other  hand, 
the  President,  the  Judges  of  the  Supreme  Court,  nearly  all  the  Demo 
cratic  members  of  Congress,  the  whole  of  the  party  South,  and  a  very 
large  majority  North,  are  penetrated  with  a  conviction  that  no  such 
power  is  vested  in  a  Territorial  Legislature,  and  that  those  who  desire 
to  confiscate  private  property  of  any  kind  must  wait  until  they  get  a 
constitutional  convention  or  the  machinery  of  a  State  government  into 
their  hands.  We  venture  to  give  the  following  reasons  for  believing 
that  Mr.  Douglas  is  in  error  : 

The  Supreme  Court  has  decided  that  a  Territorial  Legislature  has 
not  the  power  which  he  claims  for  it.  That  alone  ought  to  be  suffi 
cient.  There  can  be  no  law,  order,  or  security  for  any  man's  rights, 
unless  the  judicial  authority  of  the  country  be  upheld.  Mr.  Douglas 
may  do  what  he  pleases  with  political  conventions  and  party  plat 
forms,  but  we  trust  he  will  give  to  the  Supreme  Court  at  least  that 
decent  respect  which  none  but  the  most  ultra-Eepublicans  have  yet 
withheld. 

The  right  of  property  is  sacred,  and  the  first  object  of  all  human 


POLITICAL  ESSAYS  AND  LETTERS.  219 

government  is  to  make  it  secure.  Life  is  always  unsafe  where  prop 
erty  is  not  fully  protected.  This  is  the  experience  of  every  people  on 
earth,  ancient  and  modern.  To  secure  private  property  was  a  princi 
pal  object  of  Magna  Charta.  Charles  I  afterward  attempted  to  violate 
it ;  but  the  people  rose  upon  him,  dragged  him  to  the  block,  and  sev 
ered  his  head  from  his  body.  At  a  still  later  period  another  monarch 
for  a  kindred  offense  was  driven  out  of  the  country,  and  died  a  fugitive 
and  an  outcast.  Our  own  Eevolution  was  provoked  by  that  slight  in 
vasion  upon  the  right  of  property  which  consisted  in  the  exaction  of  a 
trifling  tax.  There  is  no  government  in  the  world,  however  absolute, 
which  would  not  be  disgraced  and  endangered  by  wantonly  sacri 
ficing  private  property  even  to  a  small  extent.  For  centuries  past  such 
outrages  have  ceased  to  be  committed  in  times  of  peace  among  civil 
ized  nations. 

Slaves  are  regarded  as  property  in  the  Southern  States.  The  peo 
ple  of  that  section  buy  and  sell,  and  carry  on  all  their  business,  provide 
for  their  families,  and  make  their  wills  and  divide  their  inheritance  on 
that  assumption.  It  is  manifest  to  all  who  know  them  that  no  doubts 
ever  cross  their  minds  about  the  rightfulness  of  holding  such  property. 
They  believe  they  have  a  direct  warrant  for  it,  not  only  in  the  exam 
ples  of  the  best  men  that  ever  lived,  but  in  the  precepts  of  Divine 
revelation  itself ;  and  they  are  thoroughly  satisfied  that  the  relation 
of  master  and  slave  is  the  only  one  which  can  possibly  exist  there  be 
tween  the  white  and  the  black  race  without  ruining  both.  The  people 
of  the  North  may  differ  from  their  fellow-citizens  of  the  South  on  the 
whole  subject,  but  knowing,  as  we  all  do,  that  these  sentiments  are  sin 
cerely  and  honestly  entertained,  we  can  not  wonder  that  they  feel  the 
most  unspeakable  indignation  when  any  attempt  is  made  to  interfere 
with  their  rights.  This  sentiment  results  naturally  and  necessarily 
from  their  education  and  habits  of  thinking.  They  can  not  help  it  any 
more  than  an  honest  man  in  the  North  can  avoid  abhorring  a  thief  or 
a  housebreaker. 

The  jurists,  legislators,  and  people  of  the  Northern  States  have 
always  sacredly  respected  the  right  of  property  in  slaves  held  by  their 
own  citizens  within  their  own  jurisdiction.  It  is  a  remarkable  fact, 
very  well  worth  noticing,  that  no  Northern  State  ever  passed  any 
law  to  take  a  negro  from  his  master.  All  laws  for  the  abolition  of 
slavery  have  operated  only  on  the  unborn  descendants  of  the  negro 
race,  and  the  vested  rights  of  masters  have  not  been  disturbed  in  the 
North  more  than  in  the  South. 

In  every  nation  under  heaven,  civilized,  semi-barbarous,  or  savage, 
where  slavery  has  existed  in  any  form  at  all  analogous  to  ours,  the  rights 
of  the  masters  to  the  control  of  their  slaves  as  property  have  been  re 
spected  ;  and  on  no  occasion  has  any  government  struck  at  those  rights, 
except  as  it  would  strike  at  other  property.  Even  the  British  Parlia- 


220  POLITICAL  ESSAYS  AND  LETTERS. 

ment,  when  it  emancipated  the  West  India  slaves,  though  it  was  legislat 
ing  for  a  people  three  thousand  miles  away,  and  not  represented,  never 
denied  either  the  legal  or  the  natural  right  of  the  slave-owner.  Slaves 
were  admitted  to  be  property,  and  the  Government  acknowledged  it 
by  paying  their  masters  one  hundred  million  dollars  for  the  privilege 
of  setting  them  free. 

Here,  then,  is  a  species  of  property  which  is  of  transcendent  im 
portance  to  the  material  interests  of  the  South — which  the  people  of 
that  region  think  it  right  and  meritorious  in  the  eyes  of  God  and  good 
men  to  hold — which  is  sanctioned  by  the  general  sense  of  all  mankind 
among  whom  it  has  existed — which  was  legal  only  a  short  time  ago  in 
all  the  States  of  the  Union,  and  was  then  treated  as  sacred  by  every 
one  of  them — which  is  guaranteed  to  the  owner  as  much  as  any  other 
property  is  guaranteed  by  the  Constitution  ;  and  Mr.  Douglas  thinks 
that  a  Territorial  Legislature  is  competent  to  take  it  away.  We  say 
no  ;  the  supreme  legislative  power  of  a  sovereign  State  alone  can  de 
prive  a  man  of  his  property. 

This  proposition  is  so  plain,  so  well  established,  and  so  universally 
acknowledged,  that  any  argument  in  its  favor  would  be  a  mere  waste 
of  words.  Mr.  Douglas  does  not  deny  it,  and  it  did  not  require  the 
thousandth  part  of  his  sagacity  to  see  that  it  was  undeniable.  He 
claims  for  the  Territorial  governments  the  right  of  confiscating  private 
property  on  the  ground  that  those  governments  AKE  sovereign — have 
an  uncontrollable  and  independent  power  over  all  their  internal  affairs. 
That  is  the  point  which  he  thinks  is  to  split  the  Democracy  and  im 
pale  the  nation.  But  it  is  so  entirely  erroneous  that  it  must  vanish 
into  thin  air  as  soon  as  it  comes  to  be  examined. 

A  Territorial  government  is  merely  provisional  and  temporary.  It 
is  created  by  Congress  for  the  necessary  preservation  of  order  and  the 
purposes  of  police.  The  powers  conferred  upon  it  are  expressed  in 
the  organic  act,  which  is  the  charter  of  its  existence,  and  which  may 
be  changed  or  repealed  at  the  pleasure  of  Congress.  In  most  of  those 
acts  the  power  has  been  expressly  reserved  to  Congress  of  revising  the 
Territorial  laws,  and  the  power  to  repeal  them  exists  without  such 
reservation.  This  was  asserted  in  the  case  of  Kansas  by  the  most  dis 
tinguished  Senators  in  the  Congress  of  1856.  The  President  appoints 
the  Governor,  judges,  and  all  other  officers  whose  appointment  is  not 
otherwise  provided  for,  directly  or  indirectly,  by  Congress.  Even  the 
expenses  of  the  Territorial  government  are  paid  out  of  the  Federal 
Treasury.  The  truth  is,  they  have  no  attribute  of  sovereignty  about 
them.  The  essence  of  sovereignty  consists  in  having  no  superior.  But 
a  Territorial  government  has  a  superior  in  the  United  States  Govern 
ment,  upon  whose  pleasure  it  is  dependent  for  its  very  existence — in 
whom  it  lives,  and  moves,  and  has  its  being — who  has  made,  and  can 
unmake  it  with  a  breath. 


POLITICAL  ESSA  YS  AND  LETTERS.  221 

Where  does  this  sovereign  authority  to  deprive  men  of  their  prop 
erty  come  from  ?  This  transcendent  power,  which  even  despots  are 
cautious  about  using,  and  which  a  constitutional  monarch  never  exer 
cises — how  does  it  get  into  a  Territorial  Legislature  ?  Surely  it  does 
not  drop  from  the  clouds  :  it  will  not  be  contended  that  it  accom 
panies  the  settlers,  or  exists  in  the  Territory  before  its  organization. 
Indeed,  it  is  not  to  the  people,  but  to  the  government  of  a  Territory, 
that  Mr.  Douglas  says  it  belongs.  Then  Congress  must  give  the  power 
at  the  same  time  that  it  gives  the  Territorial  government.  But  not  a 
word  of  the  kind  is  to  be  found  in  any  organic  act  that  ever  was 
framed.  It  is  thus  that  Mr.  Douglas's  argument  runs  itself  out  into 
nothing. 

But  if  Congress  would  pass  a  statute  expressly  to  give  this  sort  of 
power  to  the  Territorial  governments,  they  still  would  not  have  it ; 
for  the  Federal  Government  itself  does  not  possess  any  control  over 
men's  property  in  the  Territories.  That  such  power  does  not  exist  in 
the  Federal  Government  needs  no  proof  ;  Mr.  Douglas  admits  it  fully 
and  freely.  It  is,  besides,  established  by  the  solemn  decision  of  Con 
gress,  by  the  assent  of  the  Executive,  and  by  the  direct  ratification  of 
the  people  acting  in  their  primary  capacity  at  the  polls.  In  addition 
to  all  this,  the  Supreme  Court  have  deliberately  adjudged  it  to  be  an 
unalterable  and  undeniable  rule  of  constitutional  law. 

This  acknowledgment  that  Congress  has  no  power,  authority,  or 
jurisdiction  over  the  subject,  literally  obliges  Mr.  Douglas  to  give  up 
his  doctrine,  or  else  to  maintain  it  by  asserting  that  a  power  which  the 
Federal  Government  does  not  possess  may  be  given  by  Congress  to  the 
Territorial  government.  The  right  to  abolish  African  slavery  in  a 
Territory  is  not  granted  by  the  Constitution  to  Congress ;  it  is  with 
held,  and  therefore  the  same  as  if  expressly  prohibited.  Yet  Mr. 
Douglas  declares  that  Congress  may  give  it  to  the  Territories.  Nay  ; 
he  goes  further,  and  says  that  the  want  of  the  power  in  Congress  is 
the  very  reason  why  it  can  delegate  it — the  general  rule,  in  his  opinion, 
being  that  Congress  can  not  delegate  the  powers  it  possesses,  but  may 
delegate  such,  "and  only  such  as  Congress  can  not  exercise  under  the 
Constitution  !  "  By  turning  to  pages  520  and  521,  the  reader  will  see 
that  this  astounding  proposition  is  actually  made,  not  in  jest  or  irony, 
but  solemnly,  seriously,  and,  no  doubt,  in  perfect  good  faith.  On  this 
principle,  as  Congress  can  not  exercise  the  power  to  make  an  ex  post 
facto  law,  or  a  law  impairing  the  obligation  of  contracts,  therefore  it 
may  authorize  such  laws  to  be  made  by  the  town  councils  of  Washing 
ton  city,  or  the  levy  court  of  the  district.  If  Congress  passes  an  act 
to  hang  a  man  without  trial,  it  is  void,  and  the  judges  will  not  allow 
it  to  be  executed  ;  but  the  power  to  do  this  prohibited  thing  can  be 
constitutionally  given  by  Congress  to  a  Territorial  Legislature  ! 

We  admit  that  there  are  certain  powers  bestowed  upon  the  General 


222  POLITICAL  ESSAYS  AND  LETTERS. 

Government  which  are  in  their  nature  judicial  or  executive.  With 
them  Congress  can  do  nothing  except  to  see  that  they  are  executed 
by  the  proper  kind  of  officers.  It  is  also  true  that  Congress  has  cer 
tain  legislative  powers  which  can  not  be  delegated.  But  Mr.  Douglas 
should  have  known  that  he  was  not  talking  about  powers  which  be 
longed  to  either  of  these  classes,  but  about  a  legislative  jurisdiction 
totally  forbidden  to  the  Federal  Government,  and  incapable  of  being 
delegated,  for  the  simple  reason  that  it  does  not  constitutionally  exist. 

Will  anybody  say  that  such  a  power  ought,  as  a  matter  of  policy, 
or  for  reasons  of  public  safety,  to  be  held  by  the  provisional  govern 
ments  of  the  Territories  ?  Undoubtedly  no  true  patriot,  nor  no  friend 
of  justice  and  order,  can  deliberately  reflect  on  the  probable  conse 
quences  without  deprecating  them. 

This  power  over  property  is  the  one  which  in  all  governments  has 
been  most  carefully  guarded,  because  the  temptation  to  abuse  it  is 
always  greater  than  any  other.  It  is  there  that  the  subjects  of  a  lim 
ited  monarchy  watch  their  king  with  the  greatest  jealousy.  No  re 
public  has  ever  failed  to  impose  strict  limitations  upon  it.  All  free 
people  know  that,  if  they  would  remain  free,  they  must  compel  the 
government  to  keep  its  hands  off  their  private  property ;  and  this  can 
be  done  only  by  tying  them  up  with  careful  restrictions.  Accordingly, 
our  Federal  Constitution  declares  that  "  no  person  shall  be  deprived 
of  his  property  except  by  due  process  of  law,"  and  that  "  private 
property  shall  not  be  taken  for  public  use  without  just  compensation." 
It  is  universally  agreed  that  this  applies  only  to  the  exercise  of  the 
power  by  the  Government  of  the  United  States.  We  are  also  pro 
tected  against  the  State  governments  by  a  similar  provision  in  the 
State  Constitutions.  Legislative  robbery  is  therefore  a  crime  which 
can  not  be  committed  either  by  Congress  or  by  any  State  Legislature, 
unless  it  be  done  in  flat  rebellion  to  the  fundamental  law  of  the  land. 
But  if  the  Territorial  governments  have  this  power,  then  they  have  it 
without  any  limitation  whatsoever,  and  in  all  the  fullness  of  absolute 
despotism.  They  are  omnipotent  in  regard  to  all  their  internal  affairs, 
for  they  are  sovereigns,  ivithout  a  constitution  to  hold  them  in  check. 
And  this  omnipotent  sovereignty  is  to  be  wielded  by  a  few  men  sud 
denly  drawn  together  from  all  parts  of  America  and  Europe,  unac 
quainted  with  one  another,  and  ignorant  of  their  relative  rights.  But 
if  Mr.  Douglas  is  right,  those  governments  have  all  the  absolute  power 
of  the  Russian  autocrat.  They  may  take  every  kind  of  property  in 
mere  caprice,  or  for  any  purpose  of  lucre  or  malice,  without  process 
of  law,  and  without  providing  for  compensation.  The  Legislature  of 
Kansas,  sitting  at  Lecompton  or  Lawrence,  may  order  the  miners  to 
give  up  every  ounce  of  gold  that  has  been  dug  at  Pike's  Peak.  If  the 
authorities  of  Utah  should  license  a  band  of  marauders  to  despoil  the 
emigrants  crossing  the  Territory,  their  sovereign  right  to  do  so  can 


POLITICAL  ESSAYS  AND  LETTERS. 

not  be  questioned.  A  new  Territory  may  be  organized,  which  Southern 
men  think  should  be  devoted  to  the  culture  of  cotton,  while  the  people 
of  the  North  are  equally  certain  that  grazing  alone  is  the  proper  busi 
ness  to  be  carried  on  there.  If  one  party,  by  accident,  by  force,  or  by 
fraud,  has  a  majority  in  the  Legislature,  the  negroes  are  taken  from 
the  planters ;  and  if  the  other  set  gains  a  political  victory,  it  is  fol 
lowed  by  a  statute  to  plunder  the  graziers  of  their  cattle.  Such  things 
can  not  be  done  by  the  Federal  Government,  nor  by  the  governments 
of  the  States ;  but,  if  Mr.  Douglas  is  not  mistaken,  they  can  be  done 
by  the  Territorial  governments.  Is  it  not  every  way  better  to  wait 
until  the  new  inhabitants  know  themselves  and  one  another  ;  until  the 
policy  of  the  Territory  is  settled  by  some  experience  ;  and,  above  all, 
until  the  great  powers  of  a  sovereign  State  are  regularly  conferred  upon 
them  and  properly  limited,  so  as  to  prevent  the  gross  abuses  which 
always  accompany  unrestricted  power  in  human  hands  ? 

There  is  another  consideration  which  Mr.  Douglas  should  have 
been  the  last  man  to  overlook.  The  present  administration  of  the 
Federal  Government,  and  the  whole  Democratic  party  throughout  the 
country,  including  Mr.  Douglas,  thought  that,  in  the  case  of  Kansas, 
the  question  of  retaining  or  abolishing  slavery  should  not  be  deter 
mined  by  any  representative  body  without  giving  to  the  whole  mass 
of  the  people  an  opportunity  of  voting  on  it.  Mr.  Douglas  carried  it 
further,  and  warmly  opposed  the  Constitution,  denying  even  its  valid 
ity,  because  other  and  undisputed  parts  of  it  had  not  also  been  sub 
mitted  to  a  popular  vote.  Now  he  is  willing  that  the  whole  slavery 
dispute  in  any  Territory,  and  all  questions  that  can  arise  concerning 
the  rights  of  the  people  to  that  or  other  property,  shall  be  decided  at 
once  by  a  Territorial  Legislature,  without  any  submission  at  all.  Popu 
lar  sovereignty  in  the  last  Congress  meant  the  freedom  of  the  people 
from  all  the  restraints  of  law  and  order — now  it  means  a  government 
which  shall  rule  them  with  a  rod  of  iron.  It  swings  like  a  pendulum 
from  one  side  clear  over  to  the  other. 

Mr.  Douglas's  opinions  on  this  subject  of  sovereign  Territorial  gov 
ernments  are  very  singular ;  but  the  reasons  he  has  produced  to  sup 
port  them  are  infinitely  more  curious  still.  For  instance,  he  shows 
that  Jefferson  once  introduced  into  the  old  Congress  of  the  Con 
federation  a  plan  for  the  government  of  the  Territories,  calling  them 
by  the  name  of  "  New  States,"  but  not  making  them  anything  like 
sovereign  or  independent  States ;  and,  though  this  was  not  embod 
ied  in  the  Constitution,  nor  adopted  by  any  subsequent  Congress, 
nor  ever  afterward  referred  to  by  Jefferson  himself,  yet  Mr.  Douglas 
argues  upon  it  as  if  it  had  somehow  become  a  part  of  our  funda 
mental  law. 

Again  :  He  says  that  the  States  gave  to  the  Federal  Government 
the  same  powers  which  as  colonies  they  had  been  willing  to  concede 


224:  POLITICAL  ESSAYS  AND  LETTERS. 

to  the  British  Government,  and  kept  those  which  as  colonies  they  had 
claimed  for  themselves.  If  he  will  read  a  common-school  history  of 
the  Revolution,  and  then  look  at  Article  I,  section  8,  of  the  Constitu 
tion,  he  will  find  the  two  following  facts  fully  established  :  1.  That 
the  Federal  Government  has  "  power  to  lay  and  collect  taxes,  duties, 
imports,  and  excises  "  ;  and,  2.  That  the  colonies  before  the  Revolution 
utterly  refused  to  be  taxed  by  Great  Britain  ;  and,  so  far  from  conced 
ing  the  power,  fought  against  it  for  seven  long  years. 

There  is  another  thing  in  the  article  which,  if  it  had  not  come  from 
a  distinguished  Senator,  and  a  very  upright  gentleman,  would  have 
been  open  to  some  imputation  of  unfairness.  He  quotes  the  President's 
message,  and  begins  in  the  middle  of  a  sentence.  He  professes  to  give 
the  very  words,  and  makes  Mr.  Buchanan  say  that  "slavery  exists 
in  Kansas  by  virtue  of  the  Constitution  of  the  United  States."  What 
Mr.  Buchanan  did  say  was  a  very  different  thing.  It  was  this  :  "  It 
has  been  solemnly  adjudged,  by  the  highest  judicial  tribunal  known  to 
our  laws,  that  slavery  exists  in  Kansas  by  virtue  of  the  Constitution 
of  the  United  States."  Everybody  knows  that  by  treating  the  Bible 
in  that  way  you  can  prove  the  non-existence  of  God. 

Mr.  Douglas  has  a  right  to  change  his  opinions  whenever  he 
pleases.  But  we  quote  him  as  we  would  any  other  authority  equally 
high  in  favor  of  truth.  "We  can  prove  by  himself  that  every  propo 
sition  he  lays  down  in  "Harper's  Magazine"  is  founded  in  error. 
Never  before  has  any  public  man  in  America  so  completely  revolution 
ized  his  political  opinions  in  the  course  of  eighteen  months.  We 
do  not  deny  that  the  change  is  heart-felt  and  conscientious.  We 
only  insist  that  he  formerly  stated  his  propositions  much  more  clear 
ly,  and  sustained  them  with  far  greater  ability  and  better  reasons  than 
he  does  now. 

When  he  took  a  tour  to  the  South,  at  the  beginning  of  last  winter, 
he  made  a  speech  at  New  Orleans,  in  which  he  announced  to  the  peo 
ple  there  that  he  and  his  friends  in  Illinois  accepted  the  Dred  Scott 
decision,  regarded  slaves  as  property,  and  fully  admitted  the  right  of 
a  Southern  man  to  go  into  any  Federal  Territory  with  his  slave,  and 
to  hold  him  there  as  other  property  is  held. 

In  1849  he  voted  in  the  Senate  for  what  was  called  Walker's  amend 
ment,  by  which  it  was  proposed  to  put  all  the  internal  affairs  of  Cali 
fornia  and  New  Mexico  under  the  domination  of  the  President,  giving 
him  almost  unlimited  power,  legislative,  judicial,  and  executive,  over 
the  internal  affairs  of  those  Territories.  Undoubtedly  this  was  a 
strange  way  of  treating  sovereignties.  If  Mr.  Douglas  is  right  now, 
he  was  guilty  then  of  a  most  atrocious  usurpation. 

Utah  is  as  much  a  sovereign  State  as  any  other  Territory,  and  as 
perfectly  entitled  to  enjoy  the  right  of  self-government.  On  the  12th 
of  June,  1857,  Mr.  Douglas  made  a  speech  about  Utah,  at  Springfield, 


POLITICAL  ESSAYS  AND  LETTERS.  225 

Illinois,  in  which  he  expressed  his  opinion  strongly  in  favor  of  the  ab 
solute  and  unconditional  repeal  of  the  organic  act,  Hotting  the  Terri 
torial  government  out  of  existence,  and  putting  the  people  under  the 
sole  and  exclusive  jurisdiction  of  the  United  States,  like  a  fort ',  arsenal, 
dock-yard,  or  magazine.  He  does  not  seem  to  have  had  the  least  idea 
then  that  he  was  proposing  to  extinguish  a  sovereignty,  or  to  trample 
upon  the  sacred  rights  of  an  independent  people. 

The  report  which  he  made  to  the  Senate,  in  1856,  on  the  Topeka 
Constitution,  enunciates  a  very  different  doctrine  from  that  of  the 
magazine  article.  It  is  true  that  the  language  is  a  little  cloudy,  but 
no  one  can  understand  the  following  sentences  to  signify  that  the  Terri 
torial  governments  have  sovereign  power  to  take  away  the  property  of 
the  inhabitants  : 

"The  sovereignty  of  a  Territory  remains  in  abeyance,  suspended  in 
the  United  States,  in  trust  for  the  people  until  they  shall  be  admitted 
into  the  Union  as  a  State.  In  the  mean  time  they  are  admitted  to  en 
joy  and  exercise  all  the  rights  and  privileges  of  self-government,  in 
subordination  to  the  Constitution  of  the  United  States,  AND  IN  OBEDI 
ENCE  TO  THE  ORGANIC  LAW  passed  by  Congress  in  pursuance  of  that 
instrument.  These  rights  and  privileges  are  all  derived  from  the  Con 
stitution,  through  the  act  of  Congress,  and  must  be  exercised  and  en 
joyed  in  subjection  to  all  the  limitations  and  restrictions  which  that 
Constitution  imposes." 

The  letter  he  addressed  to  a  Philadelphia  meeting,  in  February, 
1858,  is  more  explicit,  and,  barring  some  anomalous  ideas  concerning 
the  abeyance  of  the  power  and  the  suspension  of  it  in  trust,  it  is  clear 
enough  : 

"  Under  our  Territorial  system,  it  requires  sovereign  power  to  or 
dain  and  establish  constitutions  and  governments.  While  a  Territory 
may  and  should  enjoy  all  the  rights  of  self-government,  in  obedience 
to  its  organic  law,  it  is  NOT  A  SOVEREIGN  POWER.  The  sovereignty 
of  a  Territory  remains  in  abeyance,  suspended  in  the  United  States, 
in  trust  for  the  people  when  they  become  a  State,  and  can  not  be  with 
drawn  from  the  hands  of  the  trustee  and  vested  in  the  people  of  a  Terri 
tory  without  the  consent  of  Congress." 

The  report  which  he  made  in  the  same  month,  from  the  Senate 
Committee  on  Territories,  is  equally  distinct,  and  rather  more  em 
phatic  against  his  new  doctrine  : 

"  This  committee  in  their  reports  have  always  held  that  a  Territory 
is  not  a  sovereign  power ;  that  the  sovereignty  of  a  Territory  is  in 
abeyance,  suspended  in  the  United  States,  in  trust  for  the  people  when 
they  become  a  State  ;  that  the  United  States,  as  trustees,  can  not  be 
divested  of  the  sovereignty,  nor  the  Territory  be  invested  with  the 
right  to  assume  and  exercise  it,  without  the  consent  of  Congress.  If 
the  proposition  be  true  that  sovereign  power  alone  can  institute  gov 
ernments,  and  that  the  sovereignty  of  a  Territory  is  in  abeyance,  sus- 

15 


226  POLITICAL  ESSAYS  AND  LETTERS. 

pended  in  the  United  States,  in  trust  for  the  people  when  they  become 
a  State,  and  that  the  sovereignty  can  not  be  divested  from  the  hands 
of  the  trustee  without  the  assent  of  Congress,  it  follows,  as  an  in 
evitable  consequence,  that  the  Kansas  Legislature  did  not  and  could 
not  confer  upon  the  Lecompton  Convention  the  sovereign  power  of 
ordaining  a  Constitution  for  the  people  of  Kansas,  in  place  of  the  or 
ganic  act  passed  by  Congress." 

The  days  are  passed  and  gone  when  Mr.  Douglas  led  the  fiery  as 
saults  of  the  opposition  in  the  Lecompton  controversy.  Then  it  was 
his  object  to  prove  that  a  Territorial  Legislature,  so  far  from  being 
omnipotent,  was  powerless  even  to  authorize  an  election  of  delegates 
to  consider  about  their  own  affairs.  It  was  asserted  that  a  convention 
chosen  under  a  Territorial  law  could  make  and  ordain  no  Constitution 
which  would  be  legally  binding.  Then  a  Territorial  government  was 
to  be  despised  and  spit  upon,  even  when  it  invited  the  people  to  come 
forward  and  vote  on  a  question  of  the  most  vital  importance  to  their 
own  interests.  But  now  all  things  have  become  new.  The  Lecompton 
dispute  has  "  gone  glimmering  down  the  dream  of  things  that  were," 
and  Mr.  Douglas  produces  another  issue,  brand-new  from  the  mint. 
The  old  opinions  are  not  worth  a  rush  to  his  present  position  :  it  must 
be  sustained  by  opposite  principles  and  reasoning  totally  different. 
The  Legislature  of  Kansas  was  not  sovereign  when  it  authorized  a  con 
vention  of  the  people  to  assemble  and  decide  what  sort  of  a  Constitu 
tion  they  would  have  ;  but  when  it  strikes  at  their  rights  of  property,  it 
becomes  not  only  a  sovereign,  but  a  sovereign  without  limitation  of 
power.  We  have  no  idea  that  Mr.  Douglas  is  not  perfectly  sincere,  as  he 
was  also  when  he  took  the  other  side.  The  impulses  engendered  by 
the  heat  of  controversy  have  driven  him  at  different  times  in  opposite 
directions.  We  do  not  charge  it  against  him  as  a  crime,  but  it  is  true 
that  these  views  of  his,  inconsistent  as  they  are  with  one  another,  al 
ways  happen  to  accord  with  the  interests  of  the  opposition,  always  give 
to  the  enemies  of  the  Constitution  a  certain  amount  of  "aid  and  com 
fort,"  and  always  add  a  little  to  the  rancorous  and  malignant  hatred 
with  which  the  abolitionists  regard  the  Government  of  their  own 
country. 

Yes  :  the  Lecompton  issue  which  Mr.  Douglas  made  upon  the  Ad 
ministration  two  years  ago  is  done,  and  the  principles  on  which  we 
were  then  opposed  are  abandoned.  We  are  no  longer  required  to  fight 
for  the  lawfulness  of  a  Territorial  election  held  under  Territorial  au 
thority.  But  another  issue  is  thrust  upon  us,  to  "disturb  the  har 
mony  and  threaten  the  integrity  "of  the  party.  A -few  words  more 
(perhaps  of  tedious  repetition),  by  way  of  showing  what  that  new  issue 
is,  or  probably  will  be,  and  we  are  done. 

We  insist  that  an  emigrant  going  into  a  Federal  Territory  retains 
his  title  to  the  property  which  he  took  with  him,  until  there  is  some 


POLITICAL  ESSAYS  AND  LETTERS.  227 

prohibition  enacted  by  lawful  authority.  Mr.  Douglas  can  not  deny 
this  in  the  face  of  his  New  Orleans  speech,  and  the  overwhelming  rea 
sons  which  support  it. 

It  is  an  agreed  point  among  all  I)emocrats  that  Congress  can  not 
interfere  with  the  rights  of  property  in  the  Territories. 

It  is  also  acknowledged  that  the  people  of  a  new  State,  either  in  their 
Constitution  or  in  an  act  of  their  Legislature,  may  make  the  negroes 
within  it  free,  or  hold  them  in  a  state  of  servitude. 

But  we  believe  more.  We  believe  in  submitting  to  the  law,  as  de 
cided  by  the  Supreme  Court,  which  declares  that  a  Territorial  Legis 
lature  can  not,  any  more  than  Congress,  interfere  with  rights  of  prop 
erty  in  a  Territory  ;  that  the  settlers  of  a  Territory  are  bound  to  wait 
until  the  sovereign  power  is  conferred  upon  them,  with  proper  limita 
tions,  before  they  attempt  to  exercise  the  most  dangerous  of  all  its 
functions.  Mr.  Douglas  denies  this,  and  there  is  the  new  issue. 

Why  should  such  an  issue  be  made  at  such  a  time  ?  What  is  there 
now  to  excuse  any  friend  of  peace  for  attempting  to  stir  up  the  bitter 
waters  of  strife  ?  There  is  no  actual  difficulty  about  this  subject  in 
any  Territory.  There  is  no  question  upon  it  pending  before  Congress 
or  the  country.  We  are  called  upon  to  make  a  contest,  at  once  un 
necessary  and  hopeless,  with  the  judicial  authority  of  the  nation.  We 
object  to  it.  We  will  not  obey  Mr.  Douglas  when  he  commands  us  to 
assault  the  Supreme  Court  of  the  United  States.  We  believe  the 
court  to  be  right,  and  Mr.  Douglas  wrong. 

n. 

Another  edition  of  these  "  Observations  "  being  called  for,  an  op 
portunity  is  afforded  of  adding  some  thoughts  suggested  by  the  at 
tempted  reply  of  Mr.  Douglas,  and  by  some  criticisms  of  a  different 
kind  which  have  appeared  in  other  quarters. 

Mr.  Douglas  charges  us  with  entertaining  the  opinion  that  "all 
the  States  of  the  Union  "  may  confiscate  private  property — a  doctrine 
which  he  denounces  as  a  most  "wicked  and  dangerous  heresy."  He 
championizes  the  inviolability  of  property,  and  invokes  the  fiery  in 
dignation  of  the  public  upon  us  for  ascribing  to  the  States  any  power 
of  taking  it  away.  Now,  mark  how  plain  a  tale  will  put  him  down. 

There  is  no  such  thing  and  nothing  like  it  on  all  these  pages,  from 
the  first  to  the  last.  Mr.  Douglas  was  merely  flourishing  his  lance  in 
the  empty  air.  He  had  no  ground  for  his  assertion,  except  a  most 
unauthorized  inference  of  his  own  from  our  denial  that  the  power  ex 
isted  in  the  Territories.  The  Territories  must  wait  till  they  become 
sovereign  States  before  they  can  confiscate  property ;  that  was  our 
position.  Therefore,  says  the  logic  of  Mr.  Douglas,  all  the  States  in 
the  Union  may  do  it  now.  What  right  had  he  to  make  imputations 
of  heresy  founded  upon  mere  inference,  when  our  opinion  on  the  very 


230  POLITICAL  ESSAYS  AND  LETTERS. 

the  action  of  the  legislative  body  itself  is  controlled  by  the  veto  power 
of  a  Governor  appointed  by  the  President  and  removable  at  his  pleas 
ure.  It  is  too  clear  for  possible  controversy  that  a  Territory  is  not  a 
sovereign  power,  but  a  subordinate  dependency.  It  can  not  deprive  a 
man  of  his  property  without  due  process  of  law,  or  without  just  com 
pensation,  for  two  reasons  :  1.  It  has  no  sovereign  power  of  its  own  ; 
and,  2.  The  Federal  Government,  being  forbidden  by  the  Constitution 
to  exercise  such  power  itself,  can  not  bestow  it  on  a  Territory.  The 
Constitution  of  the  United  States  protects  a  man's  property  from 
being  plundered  by  a  Territorial  Legislature,  just  as  a  State  Constitu 
tion  protects  it  from  robbery  by  the  authorities  of  a  city  corporation. 

It  should  be  noted  that,  when  this  question  was  before  the  Supreme 
Court  of  the  United  States,  there  was  some  difference  of  opinion  among 
the  judges,  on  the  question  whether  Congress  might,  or  might  not, 
legislate  for  a  Territory  in  such  manner  as  to  take  away  the  right  of 
property  in  slaves.  A  majority  of  two  thirds  or  more  held  the  nega 
tive  ;  and  Mr.  Douglas  admits  that  the  majority  was  clearly  right. 
But  no  member  of  the  court  expressed  the  opinion,  nor  was  it  even 
thought  of  by  the  counsel,  that  the  Territories  had  any  such  inherent 
and  natural  power  of  their  own.  Indeed,  there  is  no  judge  of  any 
grade  or  character,  nor  any  writer  on  law  or  government,  who  has  ever 
asserted  or  given  the  least  countenance  to  this  notion  of  popular  or 
any  other  kind  of  sovereignty  in  the  Territories. 

Some  trouble  will  be  saved  in  this  part  of  the  argument  by  the  fact 
that,  since  the  first  publication  of  this  pamphlet,  Mr.  Douglas  denies 
and  repudiates  all  claim  of  sovereignty  for  the  Territories.  He  even 
says  that  he  never  did  regard  them  as  sovereigns.  His  words,  spoken 
at  Wooster,  Ohio,  and  written  out  by  himself,  are  these  : 

"I  NEVER  claimed  that  Territorial  governments  were  sovereign,  or 
that  the  Territories  were  sovereign  poivers ." 

Of  course  this  is  not  to  be  understood  as  a  mere  naked  denial  that 
he  had  previously  used  those  very  words.  We  have  no  right  to  charge 
Mr.  Douglas  with  adopting  the  exploded  system  of  morality  which 
allows  a  man  to  cover  up  the  truth  under  an  equivoque.  We  are  bound 
to  take  his  denial  fairly,  as  meaning  that  he  never  thought  the  Terri 
tories  had  the  rights  and  powers  which  belong  to  sovereign  govern 
ments.  Let  us  see  how  this  assertion  will  stand  the  test  of  investiga 
tion. 

We  do  not  deny  that  the  article  in  "  Harper's  "  is  extremely  diffi 
cult  to  understand.  Its  unjointed  thoughts,  loose  expression,  and 
illogical  reasoning  have  covered  it  with  shadows,  clouds,  and  dark 
ness.  But  we  will  not  admit  that  it  has  no  meaning  at  all.  It  is 
scarcely  possible  to  mistake  the  general  purpose  of  the  author.  That 
purpose  undoubtedly  was  to  prove  that  the  States  and  Territories,  so 


POLITICAL  ESS  A  YS  AND  LETTERS.  231 

far  as  concerns  their  internal  affairs,  have  political  rights  and  powers 
which  are  precisely  equal.  In  fact,  he  declares,  in  so  many  words, 
that  Pennsylvania  and  Kansas  are  subordinate  to  the  Constitution 
"in  the  same  manner  and  to  the  same  extent"  He  not  only  levels  the 
Territories  up  to  the  States,  but  levels  the  States  down  to  the  Terri 
tories.  If  Kansas  has  slavery  by  virtue  of  the  Constitution,  he  insists 
that,  by  the  same  reasoning,  Pennsylvania  has  it  too.  Now,  we  know 
Pennsylvania  to  be  a  sovereign  ;  and  if  Kansas  be  her  equal,  then 
Kansas  must  necessarily  be  a  sovereign  also. 

But  look  at  the  last  sentence,  which  is  the  grand  summary  of  his 
whole  doctrine  : 

"  The  principle  under  our  political  system  is,  that  every  distinct 
political  community,  loyal  to  the  Constitution  and  the  Union,  is  en 
titled  to  all  the  rights,  privileges,  and  immunities  of  self-government, 
in  respect  to  their  local  concerns  and  internal  policy,  subject  only  to 
the  Constitution  of  the  United  States." 

Here  the  States  and  Territories  are  placed  on  a  footing  of  perfect 
equality.  There  is  no  distinction  made  between  them.  If  the  States 
are  sovereign,  so  are  the  Territories  Besides,  the  "rights,  privileges, 
and  immunities,-"  which  he  describes  as  pertaining  to  every  distinct 
political  community  (that  is,  to  both  States  and  Territories),  are  sover 
eign  rights,  and  nothing  else.  Any  community  which  has  the  inde 
pendent  and  uncontrollable  right  of  self-government,  with  respect 
to  its  local  concerns  and  internal  polity,  must  be,  quoad  hoc,  a  sover 
eign. 

Again :  Mr.  Douglas,  in  his  speech  at  Cincinnati,  made  so  lately 
as  the  9th  September  last,  used  the  following  unmistakable  language : 

"  Examine  the  bills  and  search  the  records,  and  you  will  find  that 
the  great  principle  which  underlies  those  measures  (the  Compromise 
of  1850)  is  the  right  of  the  people  of  each  State  and  each  Territory, 
WHILE  A  TERRITORY,  to  DECIDE  the  slavery  question  for  them 
selves.  " 

Is  not  this  claiming  sovereignty  for  the  Territories  ?  Can  the 
slavery  question  be  decided  without  legislating  upon  the  right  of  prop 
erty  ?  And  can  a  subordinate  government  do  that  ?  If  the  Terri 
tories  have  power  to  decide  whether  a  man  shall  keep  his  property  or 
not,  where  did  the  power  come  from  ?  Surely  not  from  Congress, 
through  the  organic  acts.  They  must  have  it,  then,  upon  what  Mr. 
Douglas  calls  a  great  principle,  and  that  great  principle  can  be  nothing 
else  than  "sovereignty  in  the  Territories."  Thus  it  is  seen  that  Mr. 
Douglas  makes  a  tour  to  the  West,  and  on  his  way  back  he  contradicts 
what  he  said  as  he  went  out. 

There  are  but  two  sides  to  this  controversy :  The  Territories  are 
either  sovereign  powers  by  natural  and  inherent  right,  or  else  they  are 


232  POLITICAL  ESSAYS  AND  LETTERS. 

political  corporations,  owing  all  the  authority  they  possess  to  the  acts 
of  Congress  which  create  them.  It  is  not  possible  to  believe  that  Mr. 
Douglas  wrote  thirty-eight  columns  in  a  magazine  to  prove  the  truth 
of  the  latter  doctrine.  Nobody  but  himself  and  his  followers  were  ever 
accused  of  denying  it.  If  he  did  not  deny  it,  and  plant  himself  upon 
the  opposing  ground  of  sovereignty  in  the  Territories,  then  there  was 
no  dispute,  or  cause  of  division,  between  him  and  the  Democratic 
party ;  and  he  has,  consequently,  been  engaged  in  raising  an  excite 
ment  about  nothing ;  trying  to  toss  the  ocean  of  politics  into  a  tem 
pest,  without  having  even  a  feather  to  waft,  or  a  fly  to  drown. 

But  that  is  not  all.  Mr.  Douglas  has  continually  used  the  very 
word  sovereignty  with  reference  to  the  Territories.  This  sovereignty 
in  the  Territories  he  has  asserted  and  reasserted  so  often  that  the  phrase 
is  in  great  danger  of  becoming  ridiculous  by  the  mere  frequency  with 
which  he  repeats  it.  For  many  months  he  has  not  made  a  speech  or 
written  a  letter  for  the  newspapers  on  any  other  subject.  It  heads 
his  elaborate  article  in  "  Harper's "  ;  it  is  vociferated  into  the  public 
ear  from  the  stump ;  and  it  stares  at  us  in  great  capitals  from  the 
handbills  which  call  the  people  to  his  meetings.  Unless  it  be  acknowl 
edged,  he  predicts  the  hopeless  division  of  the  party,  and  even  threat 
ens  to  refuse  its  nomination  for  the  presidency.  Now,  all  at  once,  the 
subject-matter  of  the  whole  controversy  is  admitted  to  be  a  nonentity. 
He  "checks  his  thunder  in  mid-volley,"  and  owns  that  there  is  no 
sovereignty  in  a  Territory  any  more  than  in  a  British  colony.  Other 
persons  may  have  ridden  their  hobbies  as  hard  as  Mr.  Douglas ;  but 
since  the  beginning  of  the  world  no  man  ever  dismounted  so  suddenly. 

"Sovereignty  in  the  Territories,"  of  which  we  have  heard  so  much, 
is  generally,  if  not  always,  coupled  by  Mr.  Douglas  with  the  prefix  of 
"popular."  This  last  word  appears  to  be  used  for  the  mere  sake  of 
the  sound,  and  without  any  regard  whatever  to  the  sense.  It  does  not 
mean  that  the  people  or  inhabitants  of  the  Territories  have  any  su 
preme  power  independent  of  the  laws,  or  above  the  regularly  consti 
tuted  legal  authorities.  They  can  not  meet  together,  count  them 
selves,  and  say :  "  We  are  so  many  hundreds  or  so  many  thousands, 
and  we  must  therefore  be  obeyed  ;  the  law  is  in  our  voice,  and  not  in 
the  rules  which  our  Government  has  made  to  control  us."  Something 
like  this  view  was  vaguely  entertained  in  times  when  the  Lecompton 
Constitution  was  opposed.  But  that  is  gone  by.  Mature  reflection 
has  left  monocracy  without  a  defender.  Nobody  now  insists  that  the 
right  to  make  or  annul  laws  and  constitutions  can  be  exercised  in  vol 
untary  mass-meetings  or  at  elections  unauthorized  by  law.  Mr.  Doug 
las  himself  says  :  "It  can  only  be  exercised  where  the  inhabitants  are 
sufficient  to  constitute  a  government,  and  capable  of  performing  its 
various  functions  and  duties — a  fact  to  be  ascertained  and  determined 
by  Congress."  The  sovereignty,  then,  is  in  the  government,  if  it  be 


POLITICAL  ESSAYS  AND  LETTERS.  233 

anywhere.    But  Mr.  Douglas  now  says  it  is  not  there  ;  and  he  is  right. 
That  being  the  case,  where  is  it  ? 

When  Mr.  Douglas,  in  his  speech  at  Wooster,  was  repudiating  and 
denying  the  doctrine  of  sovereignty  in  the  Territories,  and  resuming 
his  old  position,  that  they  are  not  sovereign  powers,  it  would  have 
heen  well  to  fall  back  upon  something  a  little  more  intelligible  than 
his  reports  to  the  Senate,  or  his  anti-Lecompton  letter  to  Philadel 
phia.  Here  is  the  way  he  describes  sovereignty  in  his  report  of  1856  : 

"The  sovereignty  of  a  Territory  remains  in  abeyance,  suspended 
in  the  United  States,  in  trust  for  the  people  until  they  shall  be  ad 
mitted  into  the  Union  as  a  State." 

What  do  these  words  mean,  and  in  what  possible  way  can  they  help 
us  to  a  knowledge  of  the  matter  under  consideration  ?  Abeyance  is 
good  law  French,  and  signifies  the  peculiar  condition  of  an  estate  after 
one  tenant  has  died,  and  before  his  successor  is  competent  to  take  it. 
But  what  application  can  it  have,  even  by  analogy,  to  a  sovereignty 
which  never  existed  ?  It  seems,  too,  that  this  sovereignty  is  suspended 
in  the  United  States — that  is,  hung  or  dependent  from  something  in 
the  United  States,  and  not  independent  like  every  other  sovereignty 
under  heaven.  But  the  most  marvelous  part  of  the  business  is,  that 
one  government  which  is  sovereign  is  represented  as  a  trustee  of  the 
sovereignty  of  another  government  which  is  admitted  not  to  be  sover 
eign.  This  is  the  talk  of  a  man  who  has  too  much  learning.  These 
technical  terms  of  the  common  law  were  invented  by  English  convey 
ancers  and  real-property  lawyers,  for  the  purpose  of  expressing  the 
artificial  relations  which  men  sometimes  bear  to  lands,  tenements,  and 
hereditaments  ;  but  they  are  wholly  inapplicable  to  such  a  subject  as 
the  sovereignty  of  a  State  or  nation.  We  might  as  well  call  Terri 
torial  sovereignty  a  contingent  remainder,  an  executory  devise,  or  a 
special  fee  tail. 

There  is  some  confusion  of  ideas  on  another  subject.  Mr.  Douglas 
and  his  disciples  ascribe  to  certain  Democrats  (to  the  President  among 
others)  the  belief  that  the  Constitution  establishes  slavery  in  the  Terri 
tories  ;  and,  to  sustain  this  accusation,  they  quote  from  a  message  in 
which  the  EXISTENCE  of  slavery  in  the  Territories  by  virtue  of  the 
Constitution  is  asserted  on  the  authority  of  the  Supreme  Court.  Now, 
we  are  in  the  wrong,  if  the  expression  that  a  thing  exists  by  virtue  of 
the  Constitution  be  equivalent  to  saying  that  the  Constitution  has 
established  it.  There  is  not  only  a  substantial,  but  a  wide  and  most 
obvious  difference.  The  Constitution  does  not  establish  Christianity 
in  the  Territories  ;  but  Christianity  exists  there  by  virtue  of  the  Con 
stitution  ;  because  when  a  Christian  moves  into  a  Territory  he  can  not 
be  prevented  from  taking  his  religion  along  with  him ;  nor  can  he 


234  POLITICAL  ESSAYS  AND  LETTERS. 

afterward  be  legally  molested  for  making  its  principles  the  rule  of  his 
faith  and  practice. 

We  have  said,  and  we  repeat,  that  a  man  does  not  forfeit  his  right 
of  property  in  a  slave  by  migrating  with  him  to  a  Territory.  The 
title  which  the  owner  acquired  in  the  State  from  whence  he  came 
must  be  respected  in  his  new  domicile  as  it  was  in  the  old,  until  it  is 
legally  and  constitutionally  divested.  The  proposition  is  undeniable. 
But  the  absurd  inference  which  some  persons  have  drawn  from  it  is 
not  true,  that  the  master  also  takes  with  him  the  judicial  remedies 
which  were  furnished  him  at  the  place  where  his  title  was  acquired. 
Whether  the  relation  of  master  and  slave  exists  or  not,  is  a  question 
which  must  be  determined  according  to  the  law  of  the  State  in  which 
it  was  created  ;  but  the  respective  rights  and  obligations  of  the  parties 
must  be  protected  and  enforced  by  the  law  prevailing  at  the  place 
where  they  are  supposed  to  be  violated.  This  is  also  true  with  respect 
to  rights  of  every  other  kind.  Two  merchants  living  in  the  same  town 
may  buy  their  goods  in  different  States.  Can  it  be  doubted  that  the  title 
of  each  depends  on  the  law  of  the  State  where  he  made  his  purchase  ? 
But  the  law  of  larceny  and  trespass  is  the  law  of  a  forum  common  to 
both,  and  must  necessarily  be  the  same.  The  validity  of  a  man's  mar 
riage  is  tried  by  the  standard  of  the  law  which  prevailed  in  the  coun 
try  where  it  was  solemnized  ;  but,  if  he  beats  his  wife,  she  must  seek 
protection  from  the  law  of  the  place  where  they  live. 

Some  of  Mr.  Douglas's  partisans,  and  nearly  all  of  the  anti-slavery 
opposition,  contend  that  property  in  slaves  can  not  exist  so  as  to  en 
title  it  to  the  protection  of  the  same  laws  which  secure  the  right  of 
property  in  other  things.  For  their  benefit  we  shall  briefly  show  how 
impossible  it  is  to  admit  the  distinction  which  they  insist  upon. 

What  is  property  ?  Whatever  a  person  may  legally  appropriate  to 
his  own  exclusive  use  and  transfer  to  another  by  sale  or  gift.  By  the 
laws  of  the  Southern  States,  negroes  are  withiji  this  definition,  and  the 
Constitution  of  the  United  States  not  only  recognizes  the  validity  of 
the  State  laws,  but  it  aids  in  carrying  them  out.  The  framers  of  the 
Constitution,  seeing  that  slaves  were  liable  to  one  danger  from  which 
all  other  property  was  exempt,  namely,  that  of  being  seduced  away  by 
the  offer,  in  other  States,  of  legal  shelter  from  the  pursuit  of  their 
owners,  agreed  that  the  Federal  Government  should  guarantee  their 
redelivery  to  the  exclusive  possession  of  the  persons  entitled  to  them 
as  proprietors.  The  law,  then,  of  the  States  in  which  they  are  and 
the  Constitution  of  the  Federal  Government,  to  all  legal  intents  and 
purposes,  pronounce  that  slaves  are  property.  Beaten  here,  our  ad 
versaries  convert  it  from  a  legal  to  a  theological  question.  But  when 
they  appeal  from  the  Constitution  to  the  Bible,  they  are  equally  dis 
satisfied  with  the  decision  they  get.  Nothing  is  left  them  but  that 
"Higher  Law,"  which  has  no  sanction  nor  no  authority,  divine  or 


POLITICAL  ESSAYS  AND  LETTERS.  235 

human.  Those  who  reject  the  Constitution  must  be  content  to  follow 
guides  who  are  stone-blind..  They  are  men  who  aspire  to  be  wise  above 
what  is  written,  and  thereby  press  themselves  down  to  the  extremest 
point  of  human  folly.  They  turn  their  backs  on  all  the  light  which 
the  world  has,  or  can  have ;  they  go  forth  into  outer  darkness,  and 
wander  perpetually  in  a  howling  wilderness  of  error. 

But  Mr.  Douglas  is  guiltless  of  this  heresy  at  least.  He  concedes 
that  slaves  are  precisely  like  other  property,  so  far  as  regards  the  legal 
remedies  and  constitutional  rights  of  the  owner.  He  professes' to  take 
the  fundamental  law  of  the  land  for  his  guide  upon  that  point.  Let 
his  practice,  then,  correspond  with  his  faith;  let  him  "walk  worthy 
of  the  vocation  wherewith  he  is  called "  ;  let  him  make  no  more  ap 
peals  to  popular  prejudice  for  a  sovereignty  which  does  not  exist ; 
above  all  things,  let  him  never,  by  the  slightest  suggestion,  encourage 
any  Territorial  government  to  undermine  the  rights  of  the  citizen  by 
legislation  which  is  "  unfriendly  "  to  the  security  of  either  property  or 
life.  We  must  not  palter  with  the  Constitution  in  a  double  sense,  but 
obey  it,  support  it,  defend  it,  earnestly  and  faithfully,  like  men  who 
believe  in  it  and  love  it.  Whosoever  attempts  to  trifle  with  its  prin 
ciples,  or  weaken  the  obligation  of  its  guarantees,  will  find  sooner  or 
later  that  he  has  fixed  a  stain  upon  his  political  character  which 
"there  is  not  rain  enough  in  the  sweet  heavens  "  to  wash  out. 

in. 

As  briefly  as  possible,  eschewing  all  matters  personal  or  quasi-per 
sonal,  and  without  introduction  or  preface,  I  shall  notice  the  only 
points  in  Mr.  Douglas's  last  pamphlet  that  are  worthy  of  attention. 

He  denies  that  his  views  on  "Sovereignty  in  the  Territories,"  as 
expressed  in  "Harper's  Magazine,"  are  inconsistent  with  those  of  the 
Supreme  Court  in  the  Dred  Scott  case.  I  aver,  on  the  contrary,  that 
he  could  not  have  made  such  a  denial  if  he  had  not  totally  misunder 
stood  either  his  own  opinions  or  those  of  the  court ;  for  they  are  in 
direct  conflict  with  one  another.  A  plain  issue  of  fact  is  thus  made 
up  between  us,  and  it  is  triable  by  the  record.  Let  us  look  at  it. 

The  court,  after  demonstrating  in  the  clearest  manner  that  the 
Federal  Government  had  no  authority  or  jurisdiction  to  abolish  slavery 
in  a  Territory,  proceeded  to  say  what  Mr.  Douglas  himself  has  quoted 
on  page  530  of  the  magazine  : 

"And  if  Congress  itself  can  not  do  this — if  it  is  beyond  the  powers 
conferred  on  the  Federal  Government — it  will  be  admitted,  we  pre 
sume,  that  it  could  not  authorize  a  Territorial  government  to  exercise 
them.  It  could  confer  no  power  on  any  local  government  established 
by  its  authority  to  violate  the  provisions  of  the  Constitution." 

This  is  in  substance  the  very  identical  proposition  which  Mr.  Doug- 


236  POLITICAL  ESSAYS  AND  LETTERS. 

las,  on  page  520,  pronounces  to  be  "as  plausible  as  it  is  fallacious." 
He  adds  that  "  the  reverse  of  it  is  true  as  a  general  rule  "  ;  and  then 
supports  his  assertion  by  another  assertion  the  most  singular  that  ever 
was  placed  on  record  by  any  man  having  the  slightest  pretensions  to 
a  knowledge  of  our  government ;  namely,  that  Congress  could  confer 
upon  a  Territory  such  powers,  "  and  ONLY  such  as  Congress  can  not 
exercise  under  the  Constitution "  !  There  is  the  record ;  and  I  am 
perfectly  sure  that  no  tolerably  sensible  man  in  this  nation,  except  Mr. 
Douglas,  will  doubt  for  a  moment  that  it  places  him  and  the  court  in 
an  attitude  of  perfect  antagonism. 

But  then  he  says  he  defended  the  court  in  more  than  one  hundred 
speeches.  It  can  scarcely  be  necessary  to  say  that  arguments  on  a 
question  of  law  are  valued  according  to  their  weight,  and  not  accord 
ing  to  their  number.  The  count  of  Mr.  Douglas's  speeches  on  the 
Illinois  stump  was,  no  doubt,  faithfully  kept ;  but,  when  he  claims 
credit  for  their  orthodoxy,  he  must  show  something  more  than  scores 
on  a  tally-paper.  He  might  as  well  come,  with  his  "Harper"  article 
in  one  hand  and  a  two-foot  rule  in  the  other,  ready  to  demonstrate 
his  concurrence  with  the  court  by  showing  that  it  contains  two  thou 
sand  eight  hundred  and  eighty  square  inches  of  surface.  Without 
reference  to  the  superficial  measure  of  one  or  the  carefully  enumerated 
repetitions  of  the  other,  we  may  safely  presume  that  the  quality  of 
his  spoken  arguments  was  not  better  than  that  of  his  written  essay ; 
and  in  this  latter  Mr.  Douglas  not  only  opposes  the  court,  but,  what 
is  much  worse,  he  charges  it  with  holding  his  opinions.  This  is  a  deep 
and  serious  injury ;  for  how  would  the  judges  of  that  great  tribunal 
be  able  to  look  their  country  in  the  face,  if  they  had  ever  said  that  a 
power  over  private  property,  forbidden  to  the  Federal  Government, 
might  be  delegated  by  Congress  to  a  Territorial  Legislature  ? 

The  whole  dispute  (as  far  as  it  is  a  doctrinal  dispute)  between  Mr. 
Douglas  and  the  Democratic  party  lies  substantially  in  these  two 
propositions  :  1.  The  owner  of  a  slave  may  remove  with  him,  as  with 
other  property,  into  a  Territory  without  forfeiting  his  title ;  2.  The 
government  of  a  Territory  has  and  can  have  no  power  to  deprive  the 
inhabitants  of  their  private  property,  whether  in  slaves  or  anything 
else. 

I.  The  "axiomatic  principle  of  public  law"  that  a  man,  going 
from  one  country  into  another,  retains  in  the  latter  (if  there  be  no  con 
flicting  law)  all  the  rights  of  property  which  lie  had  in  the  former,  is 
so  universally  acknowledged  that  nobody  thinks  worth  while  to  prove 
it.  At  all  times,  in  all  countries,  and  by  all  persons,  it  is  taken  and 
acted  upon  as  a  postulate.  I  certainly  had  not,  until  very  lately,  the 
remotest  suspicion  that  any  man  on  this  side  of  China  would  doubt 
it.  All  the  intercourse  between  the  States,  and  with  foreign  coun 
tries,  depends  on  it.  Without  it,  the  traveler  must  lose  all  right  to 


POLITICAL  ESSA  YS  AND  LETTERS.  237 

his  trunk  whenever  he  passes  the  border  of  his  own  State  ;  and,  when 
a  foreigner  lands  among  us,  he  may  be  robbed  of  his  purse  by  the  first 
loafer  that  meets  him  on  the  wharf.  Importation  and  exportation  would 
cease,  and  the  commerce  of  the  whole  world  would  suddenly  come  to 
a  dead  pause,  if  a  man  might  not  prove  his  right  to  personal  property 
in  one  country  by  showing  that  he  was  the  legal  owner  of  it  in  another 
from  whence  he  brought  it.  This  principle  is  to  the  commercial  world 
what  the  law  of  gravitation  is  to  the  material  universe  ;  it  can  not  be 
abolished  without  hurling  the  whole  system  into  ruin. 

Mr.  Douglas  does  not  admit  this  "axiomatic  principle,"  nor  does 
he  deny  it,  though  he  writes  a  great  deal  about  it.  But  he  is  unusu 
ally  clear  and  explicit  in  his  assertion  that  "  it  has  no  application  to, 
and  does  not  include,  slavery."  I  insist  that  he  is  utterly  mistaken. 
Slaves  being  recognized  as  property  by  the  Constitution,  and  made  so 
by  the  local  laws  of  those  States  which  have  power  to  regulate  their 
condition,  there  can  be  no  constitutional  or  legal  reason  given  for  ex 
cepting  them  from  the  operation  of  a  rule  which  applies  to  property 
in  general.  Mr.  Douglas's  argument  in  favor  of  such  discrimination 
between  slaves  and  other  property  is  a  total  failure,  and  no  plausible 
argument  can  ever  be  made  on  that  side,  except  one  founded  on  the 
"  Higher  Law,"  or  the  doctrines  taught  by  that  new  religion,  of  which 
Saint  Ossawattomie  is  the  apostle  and  the  martyr. 

It  has  never  been  held  that  any  kind  of  property  can  be  introduced 
into  a  State  or  Territory  whose  laws  oppose  the  owner's  right ;  a 
liquor-dealer  in  New  York  can  not  take  brandy  to  Portland  if  the 
Maine  law  forbids  it.  So  a  relation  formed  in  one  country  must 
cease  when  the  parties  go  to  another  in  which  such  a  relation  is  ille 
gal  :  a  Turk  may  be  the  lawful  husband  of  many  wives  in  Constanti 
nople  ;  but  he  can  not  keep  them  if  he  changes  his  residence  to  West 
ern  Europe  or  to  the  American  States.  So  it  undoubtedly  is  with 
slavery.  No  man  in  his  senses  ever  contended  that  a  Virginian,  going 
to  live  in  Pennsylvania,  could  take  his  slaves  with  him,  and  keep  them 
there  in  spite  of  the  Pennsylvania  law.  But  if  he  goes  to  Kentucky, 
where  the  law  is  not  opposed  to  slavery,  it  is  equally  clear  that  he  re 
tains  all  the  dominion  over  them  which  he  had  before  his  removal. 
The  right  of  property,  no  matter  where  it  accrued,  continues  to  be 
sacred  and  inviolable  until  it  comes  in  collision  with  a  law  which  di 
vests  it.  In  a  Federal  Territory  there  can  be  no  such  collision  with 
the  right  of  a  slaveholder,  because  there  is  no  conflicting  law  there  on 
that  subject. 

All  authority,  as  well  as  all  reason  and  common  sense,  is  in  favor 
of  this  doctrine.  It  was  the  very  point  of  the  Dred  Scott  case.  Dred 
was  the  slave  of  Dr.  Emerson,  in  Missouri,  and  was  taken  by  his  mas 
ter  to  a  Federal  Territory,  where  there  was  no  valid  law  which  either 
expressly  authorized  or  expressly  interdicted  the  holding  of  slaves. 


238  POLITICAL  ESSAYS  AND  LETTERS. 

The  court  held  that  Dred  Scott's  status  in  Missouri  was  not  changed 
nor  the  right  of  his  master  divested  by  his  removal  to  the  Territory. 
The  principle  was  applied  to  the  case  of  a  slave,  just  as  it  would  be 
applied  to  any  other  property.  It  is  half  a  score  of  times  repeated  by 
the  judges  that  there  can  be  no  distinction  between  slave  and  other 
property.  The  other  authorities  to  the  same  point  are  conclusive  and 
overwhelming.  Any  person  who  desires  to  see  all  the  learning  of  the 
subject  may  consult  "Cobb  on  Slavery,"  where  it  is  arranged  in  an 
order  so  lucid,  and  discussed  with  so  much  ability,  that  nothing 
further  need  be  desired. 

There  is  one  other  authority  directly  to  the  point  which  I  cite,  not 
only  for  its  own  intrinsic  value,  but  because  it  will  probably  be  es 
teemed  very  highly  by  Mr,  Douglas  himself.  It  is  an  extract  from  a 
speech  of  his  own,  delivered  in  the  Senate  on  the  23d  of  February  last. 
The  legal  equality  of  slave  property  and  other  property  was  then  as 
serted  by  him  in  the  following  fashion  : 

"  Slaves,  according  to  that  decision  [the  Dred  Scott  decision],  be 
ing  property,  stand  on  an  equal  footing  ivith  all  other  property.  There 
is  just  as  much  obligation  on  the  part  of  the  Territorial  Legislature  to 
protect  slaves  as  every  other  species  of  property — as  there  is  to  protect 
horses,  cattle,  dry-goods,  liquors,  etc.  If  they  have  a  right  to  discrimi 
nate  as  to  the  one,  they  have  as  to  the  other  ;  and  whether  they  have 
got  the  power  of  discrimination  or  not  is  for  the  court  to  decide  if 
any  one  disputes  it.  ...  If  there  is  no  power  of  discrimination  on  other 
species  of  property,  there  is  none  as  to  slaves.  If  there  is  a  power  of 
discrimination  as  to  other  property — and  I  think  there  is — then  it 
applies  to  slave  property.  In  other  words,  slave  property  is  on  an 
equal  footing  with  all  other  property." 

In  the  face  of  all  this,  in  the  teeth  of  his  own  words  so  recently 
uttered,  in  defiance  of  the  Supreme  Court  and  all  judicial  authority, 
Mr.  Douglas  now  declares  that  the  "axiomatic  principle  of  public 
law,"  which  enables  a  man  to  remove  his  property  from  place  to  place, 
wherever  the  local  law  does  not  forbid  its  coming,  is  not  applicable  to 
slaves.  To  sustain  himself  in  making  this  distinction,  he  produces 
two  short  passages,  both  of  which  have  been  picked  out  of  one  para 
graph  in  Story's  "  Conflict  of  Laws."  These  passages  (will  the  reader 
believe  it  ?)  merely  show  that  a  slave  becomes  free  when  taken  to  a 
country  where  slavery  is  not  tolerated  ~by  law  !  Judge  Story  cites  cases 
decided  in  England,  France,  Scotland,  and  Massachusetts,  to  prove 
that  the  laws  of  those  countries,  being  opposed  to  slavery,  will  dissolve 
the  relation  of  master  and  slave  when  brought  in  contact  with  it.  I 
say  that  slaves  may  be  taken  to  Kansas  or  Kentucky  without  being 
emancipated.  Mr.  Douglas,  with  great  gravity  and  complacency, 
answers  me  that  I  am  wrong,  because  slavery  is  not  tolerated-  in  Eng 
land  or  Massachusetts.  No  instance  of  a  non  sequitur  so  glaring  and 
so  palpable  has  ever  before  fallen  under  my  notice. 


POLITICAL  ESSA  YS  AND  LETTERS.  239 

Mr.  Douglas  forbears  to  burden  his  pages  with  "  the  long  list  of 
authorities  "  which  he  says  are  cited  by  Judge  Story.  It  is  a  curious 
fact  that  not  a  single  one  of  those  authorities  touches  the  question  in 
controversy  between  us.  They  all,  without  exception,  refer  to  cases 
in  which  there  was  a  direct  conflict  between  the  law  of  the  country 
where  the  slave  came  from  and  the  law  of  the  country  to  which  he 
was  taken.  No  one  of  the  writers  referred  to  has  outraged  common 
sense  by  saying  or  hinting  that  slaves  are  made  free  by  mere  removal 
without  any  such  conflict  of  law.  The  quotation  from  the  opinion  of 
the  Supreme  Court  in  Prigg  vs.  Pennsylvania  is  made  with  the  same 
rashness  and  with  no  nearer  approach  to  the  point. 

The  public  will  doubtless  be  somewhat  surprised  by  Mr.  Douglas's 
unique  mode  of  dealing  with  books.  For  myself,  I  am  inexpressibly 
amazed  at  it.  I  have  no  right  to  suppose  that  he  intended  to  insult 
the  intelligence  of  his  readers,  or  to  impose  upon  their  ignorance,  by 
making  a  parade  of  learning  and  research  which  he  did  not  possess. 
But  how  shall  we  account  for  quotations  like  those  ?  I  am  obliged  to 
leave  the  riddle  unread. 

II.  Assuming  that  slaves  taken  from  a  slaveholding  State  into  a 
Territory  continue  to  be  slaves,  can  the  rights  of  their  owners  be  after 
ward  divested  by  an  act  of  the  Territorial  Legislature  ?  They  can 
certainly,  if  the  Territories  are  sovereign  States  ;  if  not,  not.  On  this 
question  Mr.  Douglas  has  placed  himself  in  a  most  peculiar  position. 
Heretofore  he  has  alternately  affirmed  and  denied  the  sovereignty  of 
the  Territories.  In  his  last  pamphlet  he  seems  to  think  the  middle 
way  safest ;  he  admits  that  they  are  not  sovereign,  but  asserts  that  they 
have  "the  attributes  of  sovereignty."  This  is  not  at  all  ingenious.  It 
must  be  apparent  to  the  dullest  understanding  that  a  government 
which  has  the  attributes  of  sovereignty  is  sovereign. 

Sovereignty  is  the  supreme  authority  of  an  independent  State.  No 
government  is  sovereign  which  may  be  controlled  by  a  superior  govern 
ment.  As  applied  to  political  structures,  supremacy  and  sovereignty 
are  convertible  terms.  To  prove  this,  I  will  not  refer  to  "  the  primer 
of  political  science  "  ;  it  is  found  in  all  the  horn-books.  Every  half- 
grown  boy  in  the  country  who  has  given  the  usual  amount  of  study  to 
the  English  tongue,  or  who  has  occasionally  looked  into  a  dictionary, 
knows  that  the  sovereignty  of  a  government  consists  in  its  uncon 
trollable  right  to  exercise  the  highest  power.  But  Mr.  Douglas  tries 
to  clothe  the  Territories  with  the  "attributes  of  sovereignty,"  not  by 
proving  the  supremacy  of  their  jurisdiction  in  any  matter  or  thing 
whatsoever,  but  merely  by  showing  that  they  may  be,  and  some  of 
them  have  been,  authorized  to  legislate  within  certain  limits,  to  exer 
cise  the  right  of  eminent  domain,  to  lay  and  collect  taxes  for  Terri 
torial  purposes,  to  deprive  a  citizen  of  life,  liberty,  or  property  as  a 
punishment  for  crime,  and  to  create  corporations.  All  this  is  true 


210  POLITICAL  ESSA  YS  AND  LETTERS. 

enough,  but  it  does  by  no  means  follow  that  the  provisional  govern 
ment  of  a  Territory  is,  therefore,  a  sovereign  in  any  sense  of  the  word. 
A  city  council  may  legislate,  but  the  city  is  still  subordinate  to  the 
State  which  gave  it  political  being.  The  right  of  eminent  domain  is 
delegated  every  day  to  private  corporations,  but  no  turnpike  company 
pretends  to  be  a  sovereign  State.  The  courts  in  many  places  have 
authority  to  create  corporations,  the  sheriff  of  a  county  has  power  to 
imprison  or  hang  malefactors,  and  the  supervisors  of  a  township  can 
levy  taxes  ;  but  I  think  no  judge,  sheriff,  or  supervisor  has  ever  claimed 
the  purple  or  the  diadem  on  any  such  ground.  Governments  always 
act  by  their  agents,  but  the  agent,  whether  it  be  an  individual  officer 
or  a  political  corporation,  like  a  city  or  a  Territory,  is  not  in  any  case 
sovereign,  supreme,  and  uncontrollable.  Thus,  the  arguments  of  Mr. 
Douglas,  which  he  elaborates  through  page  after  page  with  wearisome 
pains,  are  but  touched  with  the  finger  of  investigation,  and  they  dis 
appear  forever  : 

"The  earth  hath  bubbles,  as  the  water  has, 
And  these  are  of  them." 

Mr.  Douglas,  the  Senator,  the  statesman,  the  struggling  candidate 
for  the  presidency,  should  not  have  borrowed  from  the  lawyerlings 
and  small  wits  of  the  Abolition  party  the  stale,  often-repeated,  and 
worn-out  assertion  that  emigrants  can  not  have  a  right  to  the  property 
they  take  with  them,  because  it  will  introduce  into  the  Territory  or 
State  where  they  settle  all  the  conflicting  laws  of  the  different  States 
from  whence  they  came.  Nothing  could  be  less  worthy  of  his  high 
place  in  the  councils  of  the  nation.  He  ought  to  know  that  goods  of 
various  kinds  are  going  continually  into  each  State  from  all  the  other 
States  of  the  Union,  without  producing  any  such  effects.  He  does 
know  that  nearly  all  the  personal  property  within  the  limits  of  a  new 
Territory  has  come  there  from  abroad  under  the  protection  of  the 
axiomatic  principle  which  he  thinks  proper  to  sneer  at ;  and  he  never 
heard  that  any  difficulty  or  confusion  was  produced  by  it. 

I  never  said  that  an  immigrant  to  a  Territory  had  a  right  to  his 
property  without  a  remedy  ;  but  I  admit  that  he  must  look  for  his 
remedy  to  the  law  of  his  new  domicile.  It  is  true  that  he  takes  his 
life,  his  limbs,  his  reputation,  and  his  property,  and  with  them  he 
takes  nothing  but  his  naked  right  to  keep  them  and  enjoy  them.  He 
leaves  the  judicial  remedies  of  his  previous  domicile  behind  him.  It 
is  also  true  that,  in  a  Territory  just  beginning  to  be  settled,  he  may 
need  remedies  for  the  vindication  of  his  rights  above  all  things  else. 
In  his  new  home  there  may  be  bands  of  base  marauders,  without  con 
science  or  the  fear  of  God  before  their  eyes,  who  are  ready  to  rob  and 
murder,  and  spare  nothing  that  man  or  woman  holds  dear.  In  such 
a  time  it  is  quite  possible  to  imagine  an  abolition  Legislature  whose 
members  owe  their  seats  to  Sharp's  rifles  and  the  money  of  the  Emi- 


POLITICAL  ESS  A  YS  AND  LETTERS.  241 

gration  Aid  Society.  Very  possibly  a  Legislature  so  chosen  might  em 
ploy  itself  in  passing  laws  unfriendly  to  the  rights  of  honest  men,  and 
friendly  to  the  business  of  the  robber  and  the  murderer.  I  concede 
this,  and  Mr.  Douglas  is  entitled  to  all  the  comfort  it  affords  him. 
But  it  is  an  insult  to  the  American  people  to  suppose  that  any  com 
munity  can  be  organized  within  the  limits  of  our  Union  who  will 
tolerate  such  a  state  of  things.  If  it  shall  ever  come  to  that,  Mr. 
Douglas  may  rest  assured  that  a  remedy  will  be  found.  No  govern 
ment  can  possibly  exist  which  will  allow  the  right  of  property  to  go 
unprotected ;  much  less  can  it  suffer  such  a  right  to  be  exposed  to 
"  unfriendly  legislation." 

Mr.  Douglas  thinks  that  a  Territory  may  exclude  slaves,  or  inter 
fere  with  the  rights  of  the  owners,  because,  in  some  of  the  organic 
acts,  the  general  grant  is  made  of  authority  over  "all  rightful  subjects 
of  legislation."  This  is  not  the  least  unaccountable  of  his  strange 
notions.  In  such  an  act  nothing  is  taken  by  implication,  nor  could 
the  power  in  question  be  given  even  by  express  words,  for  it  is  forbid 
den  by  the  Constitution  to  the  Federal  Government  itself.  The  logic 
so  peculiar  to  Mr.  Douglas,  which  infers  the  power  to  give  from  the 
want  of  possession,  may  sustain  such  a  construction  of  a  statute  ;  but 
nothing  else  will. 

A  "plan"  relating  to  the  Territories  was  offered  to  Congress  by 
Mr.  Jefferson  in  1784.  It  was  a  mere  projet,  in  the  form  of  resolu 
tions,  embodying  certain  abstract  propositions  in  anticipation  of  set 
tlements  yet  to  be  made  in  the  wilderness.  It  did  not  establish  any 
government,  temporary  or  permanent,  but  provided  how  the  settlers, 
when  they  would  go  there,  might  petition  Congress  and  get  themselves 
organized.  There  is  not  a  word  in  any  of  the  resolutions  about  sover 
eignty  or  slavery.  They  were  passed  in  April,  1784,  but  three  years 
afterward  they  were  repealed  ;  the  whole  "plan"  was  rejected  ~by  Con 
gress,  and  another  plan  totally  different  (the  famous  Ordinance  of 
1787)  was  substituted  in  its  place.  Mr.  Douglas,  in  "  Harper,"  re 
ferred  to  this  plan,  and  expended  column  after  column  of  dreary  com 
ment  upon  it.  It  was  ridiculously  inapplicable  to  his  argument ;  like 
his  quotation  from  Story,  it  had  no  more  to  do  with  the  subject  before 
him  than  the  Edict  of  Nantes.  I  referred  to  it  merely  as  showing  how 
he  could  wander  from  the  point.  But  he  allows  his  righteous  soul  to 
be  vexed  at  me  for  saying  it  was  rejected.  It  was  rejected  ;  for,  though 
Congress  assented  to  the  resolutions  when  first  offered,  the  plan  was 
repudiated  before  a  single  principle  of  it  went  into  operation.  Mr. 
Douglas  says  that  it  "stood  on  the  statute-book  unrepealed  and  irre- 
pealable."  I  take  it  for  granted  that  he  would  not  have  made  such 
an  allegation  if  he  had  known  what  I  now  tell  him :  that  it  was,  in 
fact,  repealed  in  1787  by  the  unanimous  vote  of  the  whole  Congress. — 
(Journal  of  Congress,  vol.  iv,  page  754.) 

16 


242  POLITICAL  ESSAYS  AND  LETTERS. 

I  have  regarded  this  dispute  as  on  a  question  of  constitutional  law, 
far,  very  far,  above  party  politics.  But  I  am  tempted  to  vindicate  the 
Democracy  from  the  imputation  which  Mr.  Douglas  casts  upon  that 
party  when  he  claims  the  Cincinnati  platform  as  favoring  his  creed. 
It  contains  no  word  of  the  kind.  I  may  also  add  that  every  Democrat 
who  desires  to  preserve  "  the  unity  of  the  faith  in  the  bonds  of  peace  " 
will  disapprove  the  odious  charge  which  Mr.  Douglas  flings  at  the 
President,  of  agreeing  with  him  on  this  subject.  The  calm,  clear 
judgment  of  Mr.  Buchanan  was  never  for  a  moment  imposed  on,  nor 
his  love  for  the  Constitution  shaken,  by  this  heresy.  Neither  in  his 
Sanford  letter,  nor  in  his  letter  of  acceptance,  nor  his  inaugural  ad 
dress,  nor  in  any  other  paper,  public  or  private,  did  he  ever  give  the 
remotest  countenance  to  such  doctrine.  He  has  often  said  that  the 
people  of  the  Territories  had  the  right  to  determine  the  question  of 
slavery  for  themselves,  but  he  never  said  nor  intimated  that  they  could 
do  so  before  they  were  ready  to  form  a  State  Constitution. 

I  will  not  follow  Mr.  Douglas  any  further  at  present.  But  I  must 
not  be  understood  as  assenting  to  the  numerous  assertions  upon  which 
I  am  silent.  There  is  scarcely  a  sentence  in  this  whole  pamphlet  which 
does  not  either  propound  an  error,  or  else  mangle  a  truth.  I  do  not 
charge  him,  however,  with  willful  misstatements  of  either  law  or  fact. 


LETTER  TO  JUDGE  HOAE. 

WASHINGTON,  January  18,  1870. 

Sm  :  I  was  not  present  in  court  yesterday  to  hear  your  remarks  on 
Mr.  Stanton,  but  to-day  I  was  shown  a  newspaper  report  of  them,  which 
I  presume  to  be  perfectly  accurate.  The  following  paragraph  struck 
me  with  much  surprise  : 

"  But  it  is  not  of  the  lawyer,  eminent  as  he  was  in  the  science  and 
practice  of  the  law,  that  men  chiefly  think  as  they  remember  him. 
His  service  to  mankind  was  on  a  higher  and  wider  field.  He  was  ap 
pointed  Attorney-General  by  Mr.  Buchanan  on  the  20th  of  December, 
1860,  in  one  of  the  darkest  hours  of  the  country's  history,  when  the 
Union  seemed  crumbling  to  pieces  without  an  arm  raised  for  its  sup 
port,  when  *  without '  the  public  councils  ( was  doubting,  and  within 
were  fears ' ;  when  feebleness  and  treachery  were  uniting  to  yield  what 
ever  defiant  rebellion  might  demand,  and  good  men  everywhere  were 
ready  to  despair  of  the  republic.  For  ten  weeks  of  that  winter  of 
national  agony  and  shame,  with  patriotism  that  never  wavered,  and 
courage  that  never  quailed,  this  true  American,  happily  not  wholly 
alone,  stood  manfully  at  his  post,  '  between  the  living  and  the  dead,' 


POLITICAL  ESSAYS  AND  LETTERS.  243 

gave  what  nerve  he  could  to  timid  and  trembling  imbecility,  and  met 
the  secret  plotters  of  their  country's  ruin  with  an  undaunted  front, 
until  before  that  resolute  presence  the  demons  of  treason  and  civil 
discord  appeared  in  their  own  shape,  as  at  the  touch  of  Ithuriel's 
spear,  and  fled  baffled  and  howling  away." 

This  statement  was  carefully  and  deliberately  written  down  before 
you  delivered  it.  You  spoke  for  the  American  bar  as  its  organ  and 
official  head,  and  you  addressed  the  highest  judicial  tribunal  in  the 
world,  knowing  that  your  words  were  to  go  upon  its  record  and  re 
main  there  forever.  I  take  it  for  granted  that  under  these  circum 
stances  no  earthly  temptation  could  make  you  deflect  a  hair's  breadth 
from  the  facts  as  you  understood  and  believed  them.  The  inevitable 
conclusion  is  that  you  must  have  in  your  possession,  or  within  your 
reach,  some  evidence  which  convinces  you  that  what  you  said  is  the 
truth,  and  nothing  but  the  truth.  I  am  sure  you  will  excuse  me  for 
asking  you  to  say  what  that  evidence  is. 

The  passage  I  have  transcribed  from  your  address  sounds  like  the 
authoritative  summary  of  an  historian  as  he  closes  the  most  interest 
ing  chapter  of  his  book.  You  can  hardly  consider  the  curiosity  im 
pertinent  that  prompts  an  American  citizen  to  inquire  what  your 
judgment  is  founded  upon.  Besides,  I  have  some  friends  whose  repu 
tation  is  deeply  involved  in  the  affairs  you  pronounce  upon  with  so 
much  confidence.  Moreover,  I  have  a  personal  concern  in  your  re 
marks,  for  I  was  one  of  Mr.  Stanton's  colleagues,  and  am  as  liable  as 
any  of  them  to  be  taken,  on  your  statement,  for  one  of  the  "  secret 
plotters  of  their  country's  ruin."  Be  pleated,  therefore,  to  give  me  the 
information  I  seek. 

Do  you  find  on  the  records  of  your  office  anything  which  shows 
that  Mr.  Stanton  was  in  violent  or  dangerous  conflict  with  "  demons 
of  treason  and  civil  discord,"  or  any  other  description  of  demons  ? 

Did  Mr.  Stanton  himself  ever  lay  claim  to  the  heroic  character 
you  ascribe  to  him,  or  declare  that  he  had  performed  those  prodigious 
feats  of  courage  while  he  was  in  Mr.  Buchanan's  Cabinet  ? 

Has  any  other  person  who  was  in  a  condition  to  know  the  facts 
ever  given  you  that  version  of  them  which  you  repeated  to  the  court  ? 
If  yes,  who  are  the  witnesses  ? 

What  particular  danger  was  he  exposed  to  which  tested  his  valor, 
and  made  his  "  undaunted  front "  a  thing  so  wonderful  in  the  descrip 
tion  of  it  ? 

Whose  "  feebleness  and  treachery "  was  it  that  united  "  to  yield 
whatever  defiant  rebellion  might  demand  "  ?  And  how  did  Mr.  Stan- 
ton's  courage  and  patriotism  dissolve  the  combination,  or  defeat  its 
purposes  ? 

You  say  that  for  ten  weeks  "  he  stood  manfully  at  his  post  be 
tween  the  living  and  the  dead."  Now,  when  the  first  law  officer  of 


244  POLITICAL  ESSAYS  AND  LETTERS. 

the  United  States  addresses  the  Supreme  Court  on  a  special  occasion, 
and  after  elaborate  preparation,  he  is  presumed  to  mean  something  by 
what  he  says.  How  is  this  to  be  understood  ?  You  certainly  did  not 
intend  to  assert  merely  that  he  stuck  to  his  commission  as  long  as  he 
could,  and  gave  it  up  only  when  he  could  not  help  it.  Standing  man 
fully  at  a  post  of  any  kind,  and  especially  when  the  stand  is  made  be 
tween  the  living  and  the  dead,  has  doubtless  a  deep  significance,  if 
one  could  but  manage  to  find  out  what  it  is.  Who  were  the  dead  and 
who  were  the  living  ?  And  how  did  it  happen  that  Mr.  Stan  ton  got 
between  them  ?  What  business  had  he  between  them,  and  why  did 
he  stay  there  for  ten  weeks  ?  These  questions  you  can  easily  answer, 
and  the  answer  is  needed,  for  in  the  mean  time  the  conjectural  inter 
pretations  are  very  various,  and  some  of  them  injurious  to  the  dead 
and  living  aforesaid,  as  well  as  to  Mr.  Stanton,  who,  according  to  your 
representation,  stood  between  them. 

I  can  comprehend  the  well-worn  simile  of  IthurieFs  spear,  but  I  do 
not  see  what  on  earth  was  the  use  of  it,  unless  you  thought  it  orna 
mental  and  original ;  for  you  make  Mr.  Stanton  by  his  mere  presence, 
without  a  spear,  do  what  Ithuriel  himself  could  not  do  with  the  aid  of 
that  powerful  instrument.  The  angel  with  a  spear  compelled  a  demon 
to  lay  aside  his  disguise,  while  the  mortal  man  dealt  with  many  demons, 
and  not  only  made  them  all  appear  in  their  proper  shape,  but  drove 
them  "baffled  and  howling  away  "  out  of  his  "  resolute  presence."  I 
do  not  object  to  this  because  the  figures  are  mixed,  or  because  it  is  an  ex 
travagant  outrage  on  good  taste.  The  custom  of  the  time  allows  men 
who  make  eulogies  011  thei»political  friends  to  tear  their  rhetoric  into 
rags  ;  and  if  you  like  the  tatters,  you  are  welcome  to  flaunt  them ; 
but  I  call  your  attention  to  it  in  the  hope  that  you  will  talk  like  a  man 
of  this  world,  and  give  us  in  plain  (or  at  least  intelligible)  prose,  a 
particular  account  of  the  very  important  transactions  to  which  you 
refer,  together  with  the  attendant  circumstances.  I  suppose  you  have 
no  thought  of  being  taken  literally.  Your  description  of  Mr.  Stanton 
conjuring  demons  is  only  a  metaphorical  way  you  have  of  saying  that 
he  frightened  certain  bad  men.  I  beg  you  to  tell  me  who  they  were, 
and  how  he  scared  them. 

I  repeat  that  you  are  not  charged,  and,  in  my  opinion,  could  not 
be  justly  charged,  with  the  great  sin  of  fabricating  statements  like 
these.  You  have  no  doubt  seen  or  heard  what  you  regard  as  sufficient 
proof  of  them.  What  I  fear  is,  that  you  have  been  misled  by  the  false 
accounts  which  partisan  writers  have  invented,  not  to  honor  Mr.  Stan- 
ton,  but  to  slander  others. 

If  you  had  known  the  truth  concerning  his  conduct  while  he  was 
Attorney-General,  and  told  it  simply,  you  might  have  done  great 
honor  to  his  memory.  He  was,  at  that  time,  a  regular-built,  old- 
fashioned,  Democratic  "Union-saver."  He  believed  in  the  Constitu- 


POLITICAL  ESSAYS  AND  LETTERS.  245 

tion  as  the  fundamental  law  of  the  land  ;  as  the  bulwark  of  public  lib 
erty  ;  and  as  the  only  bond  by  which  the  States  could  be  rightfully 
held  together.  He  regarded  his  official  oath  as  a  solemn  convenant 
with  God  and  his  country,  never  to  be  violated  under  any  circum 
stances,  and  he  had  a  right  wholesome  contempt  for  that  corrupt  code 
of  morality  which  teaches  that  oaths  are  not  binding  upon  the  rulers  of 
a  free  country,  when  they  find  it  inconsistent  with  their  interest  to 
keep  them.  He  uniformly  behaved  with  "modest  stillness  and  hu 
mility,"  except  when  his  opinion  was  asked,  and  then  he  spoke  with 
becoming  deference  to  others.  From  that  part  of  his  life,  at  least, 
you  might,  by  telling  it  truly,  have  derived  a  "  lofty  lesson"  indeed. 
But  this  quiet,  unpretending,  high-principled  Democratic  gentleman 
is  converted  by  your  maladroit  oratory  into  a  hectoring  bully  of  the 
abolition  school ;  rampaging  through  the  White  House  and  around 
the  department,  trying  to  frighten  people  with  big  looks. 

I  beseech  you  to  examine  your  authorities.  If  you  still  think 
them  sufficient  to  sustain  you,  I  can  not  doubt  your  willingness  to 
communicate  them  for  the  scrutiny  of  others  who  are  interested.  If, 
on  the  contrary,  you  shall  be  satisfied  that  you  have  made  a  great  mis 
take,  then  justice  to  all  parties,  and  especially  to  the  subject  of  your 
well-meant  but  unfortunate  eulogy,  requires  some  amends  to  be  made. 
It  will  be  for  you  to  say  whether  you  will,  or  will  not,  ask  the  court 
for  leave  to  withdraw  that  part  of  your  speech  from  the  record. 

I  am,  very  respectfully,  yours, 

J.  S.  BLACK. 


LETTERS  TO  HENRY  WILSON, 
i. 

To  the  Hon.  Henry  Wilson,  Senator  from  Massachusetts : 

Isr  the  February  number  of  the  "  Atlantic  Monthly  "  appeared  an 
article  of  yours  entitled  "Edwin  M.  Stanton."  It  contains  some 
statements  which  are  very  wonderful,  if  true  ;  and,  if  false,  they  ought 
to  be  corrected.  I  ask  you  to  review  this  production  in  the  light  of 
certain  facts  which  I  shall  now  take  the  liberty  to  mention. 

My  principal  object  is  to  satisfy  you  that  you  have  wholly  misun 
derstood  the  charactor  of  Mr.  Stanton,  and  grossly  injured  him  by 
what  you  supposed  to  be  panegyric.  But  before  I  begin  that,  suffer 
me  to  correct  some  of  your  errors  about  other  persons. 

In  your  vituperative  description  of  the  Buchanan  Administration, 
you  allege  that  "the  President  and  his  Attorney-General  surrendered 
the  Government's  right  of  self-preservation  "  and  "  pronounced  against 


24:6  POLITICAL  ESSAYS  AND  LETTERS. 

its  power  to  coerce  a  seceding  State."  You  refer  manifestly  to  the  opin 
ion  of  the  Attorney-General,  dated  the  20th  of  November,  1860,  defin 
ing  the  duties  and  powers  of  the  President,  and  to  the  public  acts  of  the 
President  which  show  that  he  took  the  advice  of  the  law  department 
and  squared  his  conduct  accordingly.  Upon  this  ground  mainly,  if 
not  entirely,  you  denounce  that  Administration  as  not  only  weak  and  un 
patriotic,  but  willfully  wicked  and  treasonable.  I  propose  to  show  that 
you  have  committed  a  cardinal  error,  if  not  something  worse.  The 
coarse  way  in  which  you  charge  the  dead  as  well  as  the  living  with  the 
highest  crimes  would  justify  a  reply  in  language  much  plainer  than  I 
intend  to  use. 

Your  modes  of  thinking  and  speaking  on  subjects  of  this  kind  are 
so  loose  and  inaccurate,  that  it  is  necessary  to  furnish  you  with  an 
idea  of  certain  elementary  principles  which  to  most  other  men  are  too 
familiar  to  talk  about: 

1.  The  Government  of  the  United  States  is  the   Constitution  and 
laws. 

2.  The  preservation  of  the  Government  consists  in  maintaining 
the  supremacy  of  the  Constitution  and  laws. 

3.  For  this  purpose  certain  coercive  powers  are  delegated  to  the 
Executive,  which  he  may  use  to  defend  the  laws  when  they  are  re 
sisted. 

4.  But  in  this  country,  as  in  every  other,  except  where  the  gov 
ernment  is  an  absolute  despotism,  the  authority  of  the  Chief  Magis 
trate  is  limited  and  his  hands  are  tied  up  by  legal  restriction,  to  pre 
vent  him  from  using  physical  force  against  the  life,  liberty,  and  prop 
erty  of  his  fellow-citizens,  unless  in  certain  prescribed  ways  and  on 
proper  occasions. 

5.  He  is  bound  by  his  inaugural  oath  to  keep  within  those  limits  : 
if  he  breaks  the  laws,  he  destroys  the  Government ;  he  can  not  stab 
the  Constitution  in  the  back  because  he  is  afraid  that  somebody  else 
will  strike  it  in  the  face. 

6.  The  Government  of  the  United  States,  within  its  proper  sphere, 
is  a  sovereign,  as  much  as   the   States  are  sovereign  within  their 
sphere.     It  acts  immediately  upon  the  people,  and  claims  their  direct 
obedience  to  its  laws.     As  a  State  can  not  make  war  upon  a  city, 
county,  or  town,  and  put  all  its  inhabitants  to  the  sword,  because  some 
of  them  have  acted  or  threatened  to  act  illegally,  so  the  General  Gov 
ernment  is  also  restrained  from    exterminating  the  whole  popula 
tion  of  a  State  for  the  offenses,  actual  or  intended,  of  some  who  live 
among  them. 

7.  The  so-called  ordinances  of  secession  in  1860-'61  were  the  dec 
larations  of  certain  persons  who  made  them  that  they  intended  to  dis 
obey  the  laws  of  the  United  States.     It  was  the  duty  of  Congress  and 
the  President  to  see  that  forcible  resistance  to  the  laws,  when  actually 


POLITICAL  ESSAYS  AND  LETTERS.  247 

made,  should  be  met  by  a  counter-force  sufficient  to  put  it  down  ;  but 
neither  Congress  nor  the  President  had  authority  to  declare  war  and 
begin  hostilities,  by  anticipation,  against  all  the  people  at  once,  and 
put  them  all  in  the  attitude  of  public  enemies  without  regard  to 
their  personal  guilt  or  innocence. 

The  opinion  of  the  Attorney- General,  which  you  have  garbled,  and 
the  messages  of  President  Buchanan,,  assert  these  principles  in  plain 
English  words.  "We  held  that  the  whole  coercive  power  of  the  United 
States,  delegated  by  the  Constitution  to  every  branch  of  the  'Govern 
ment,  judicial,  legislative,  and  executive,  including  its  military  and 
naval  force,  might  and  ought,  in  the  appointed  way,  to  be  used  to 
maintain  the  supremacy  of  the  laws  against  all  opposers,  to  hold  or 
retake  the  public  property  and  to  collect  the  revenue.  But  we  as 
serted,  also,  that  powers  not  given  ought  not  to  be  usurped,  and  that 
war  upon  a  State,  in  the  then  circumstances  of  the  country,  would 
be  not  only  usurpation,  but  destruction  of  the  Union. 

Of  course,  you  can  not  be  so  ignorant  of  the  fundamental  law  as 
not  to  know  that  our  exposition  of  it  was  perfectly  sound  and  correct. 
You  never  pretended — no  man  with  sense  enough  to  know  his  right 
hand  from  his  left  ever  will  pretend — that  the  President  had  constitu 
tional  or  legal  authority  to  mate  an  aggressive  war  against  the  States 
by  his  own  act,  nor  had  Congress  any  such  power.  But  you  think  I 
ought  not  to  have  answered  the  President's  questions  truly,  and  that 
he  ought  not  to  have  been  influenced  by  constitutional  scruples. 
That  is  the  rub.  There  is  no  dispute — never  was,  and  never  can  be — 
about  the  law  ;  but  Mr.  Buchanan's  wickedness  and  treason  consisted 
in  obeying  it  when  you  think  he  ought  to  have  broken  it.  For  this 
cause  you  try  to  excite  against  his  memory  those  bad  party  passions 
by  which  he  was  hounded  and  persecuted  during  all  the  last  years  of 
his  life. 

I  will  make  no  effort  to  convince  you  that  Mr.  Buchanan  was 
right  in  standing  by  the  Constitution  which  he  had  sworn  to  preserve, 
protect,  and  defend.  That  I  know  would  be  altogether  hopeless. 
The  declared  admirer  of  John  Brown,  the  political  ally  of  Jim  Lane, 
the  partisan  of  Baker,  the  advocate  of  general  kidnapping  and  special 
murder  by  military  commissions,  the  open  supporter  of  measures 
which  abolish  the  right  of  trial  by  jury  and  build  up  an  Asiatic  despot 
ism  on  the  ruins  of  free  government— such  a  man  would  entirely  mis 
understand  the  reason  (simple  as  it  is)  upon  which  I  put  the  justifica 
tion  of  a  dead  President  for  refusing  to  perjure  himself.  But,  if  I 
can  not  justify,  perhaps  I  can  excuse  him.  I  will  offer  some  apolo 
gies  which  may  possibly  disarm  your  censure,  or  at  least  mitigate  the 
severity  of  your  righteous  indignation. 

In  the  first  place,  Mr.  Buchanan  was  born  of  Christian  parents  and 
educated  in  a  Christian  community.  All  his  lifetime,  and  at  the  mo- 


248  POLITICAL  ESSAYS  AND  LETTERS. 

ment  of  his  death,  he  felt  that  fear  of  God  which  a  respectable  author 
ity  has  declared  to  be,  not  weakness,  but  the  "beginning  of  wisdom  " 
and  the  only  source  of  true  greatness.  The  corruptions  introduced 
into  the  Church  by  the  political  preachers  of  New  England  never 
reached  him.  He  was  simply  a  Christian  man,  and  a  firm  believer  in 
the  morality  taught  by  the  New  Testament.  Now,  you  know  (at  all 
events  you  must  have  heard)  that  persons  who  adhere  to  that  kind  of 
religion  always  contract  a  habit  of  regarding  the  violation  of  an  oath 
with  inexpressible  horror,  whether  it  be  committed  by  an  officer  or  a 
witness  ;  whether  the  object  of  it  be  to  destroy  the  character  of  a  polit 
ical  opponent,  to  promote  the  interests  of  a  party,  or  to  enslave  a 
State.  All  kinds  of  false  swearing  are  alike  to  them.  They  stub 
bornly  reject  the  reasoning  which  seeks  to  convince  them  that  observ 
ance  of  oaths  by  magistrates  and  legislators  is  a  mere  question  of  ex 
pediency  and  self-interest,  varying  with  circumstances.  Mr.  Buchanan 
being  a  man  of  this  class,  I  submit  the  question  whether  his  prejudices 
against  perjury  (unreasonable  as  you  may  think  them)  are  not  enti 
tled  to  some  little  respect. 

Apart  from  the  religious  obligation  of  his  oath,  he  loved  the  Con 
stitution  of  his  country  on  its  own  account,  as  the  best  government 
the  world  ever  saw.  I  do  not  expect  you  to  spmpathize  with  this  feel 
ing  ;  your  affections  are  otherwise  engaged.  But  can  you  not  make 
allowance  for  his  attachment  to  that  great  compact  which  was  framed 
by  our  forefathers  to  secure  union,  justice,  peace,  State  independence, 
and  individual  liberty  for  ourselves  and  our  posterity  ? 

Another  thing :  All  his  predecessors  governed  their  conduct  by 
similar  notions  of  fidelity  to  the  Constitution.  In  peace  and  in  war, 
in  prosperity  and  disaster,  through  all  changes,  in  spite  of  all  threats 
and  provocations,  they  had  kept  their  oaths,  and  assumed  no  ungranted 
power.  It  was  the  most  natural  thing  in  the  world  for  Mr.  Buchanan 
to  follow  the  example  of  such  men  as  Washington,  Madison,  and  Jack 
son,  rather  than  the  precepts  of  those  small  but  ferocious  politicians 
who  thought. their  own  passions  and  interests  a  "higher  law"  than 
the  law  of  the  country. 

Again  :  All  his  advisers — not  I  alone,  but  all  of  them — expressed 
the  clear  and  unhesitating  opinion  that  his  view  of  the  law  on  the  sub 
ject  of  coercing  States  was  right.  His  legal  duty  being  settled,  not  one 
among  them  ever  breathed  a  suggestion  that  he  ought  to  violate  it. 

Besides  :  there  was  a  question  of  natural  justice,  as  well  as  legal 
propriety,  involved  in  making  war  upon  the  States  at  that  time. 
Nine-tenths  of  the  Southern  people  were  thoroughly  devoted  to  the 
Union,  and  had  committed  no  sin  against  it,  even  in  thought.  Would 
it  have  been  well  to  bring  the  visitation  of  fire,  sword,  and  famine 
upon  whole  communities  of  innocent  persons  ?  You  will  probably 
answer  this  in  the  affirmative.  You  think  that  no  opportunity  to 


POLITICAL  ESSA  YS  AND  LETTERS.  249 

shed  blood  and  plunder  the  property  of  men,  women,  and  children 
who  live  beyond  the  Potomac  ought  ever  to  be  lost.  Mr.  Buchanan 
might  have  seized  that  occasion  to  imitate  John  Brown  on  a  large 
scale,  and  thus  made  himself  an  "  heroic  character "  in  your  eyes. 
But  you  must  be  aware  that  he  would  have  been  regarded  by  the 
mass  of  men  as  a  moral  monster  ;  and  the  admiration  of  yourself  and 
your  party  in  Massachusetts  would  have  been  but  a  poor  compensa 
tion  for  the  eternal  weight  of  infamy  with  which  the  rest  of  the  world 
would  have  loaded  his  memory. 

Further  still :  You  know  that  the  General-in-Chief  of  the  Army 
had  reported  five  companies  as  the  whole  available  force  for  operations 
in  the  South,  and  you  never  proposed  to  increase  it.  Yet  you  wanted 
war.  Why  ?  You  must  have  desired  the  Union  cause  to  be  disgraced 
and  defeated,  for  nothing  else  could  have  resulted  from  such  a  war  as 
you  now  abuse  Mr.  Buchanan  for  not  making.  You  and  your  party 
in  Congress  were  strictly  non-committal.  You  did  not  recommend 
peace,  nor  offer  your  support  to  war.  You  would  take  neither  the 
olive-branch  nor  the  sword.  You  refused  to  settle,  and  you  made  no 
preparation  for  a  contest.  But  you  reveal  now  what  was  then  the 
secret  desire  of  your  heart — that  the  Administration,  in  defiance  of 
law  and  without  means,  would  declare  war  on  its  own  responsibility. 
This  would  have  been  an  expulsion  of  the  Southern  States  from  the 
Union,  for  it  would  have  placed  all  their  people  beyond  the  protec 
tion  of  Federal  law ;  they  would  necessarily  rise  in  self-defense ;  our 
little  army  of  five  hundred  men  would  perish  in  a  fortnight ;  and  be 
fore  the  4th  of  March  the  independence  of  the  South  would  be  a  set 
tled  fact. 

Moreover,  as  you  and  your  party  friends  in  Congress  did  not  call 
for  a  war,  the  President  had  a  right  (had  he  not  ?)  to  suppose  that 
you  approved  of  his  determination  to  keep  the  peace.  Perhaps  your 
approval  of  his  conduct  is  not  very  powerful  evidence  of  its  justice  or 
legality.  But  here  is  the  point :  How  can  you  have  the  face  to  de 
nounce  a  man  as  a  criminal,  after  he  is  dead,  for  public  acts  which 
you  consented  to  by  your  silence  at  the  time  they  were  done  ? 

But  this  is  not  all.  You  give  your  unqualified  approbation  to 
Mr.  Lincoln's  Administration.  I  do  not  say  you  were  true  to  it  (for  I 
believe  the  evidence  is  extant  which  proves  that  you  were  not) ;  but 
you  have  lauded  it  as  strong  and  faithful.  Mr.  Lincoln  adopted  pre 
cisely  the  same  legal  principles  with  regard  to  the  coercion  of  the 
States  that  Mr.  Buchanan  had  acted  upon,  and  carried  the  policy  of 
reconciliation  infinitely  beyond  him.  He  avowed  his  intention  not  to 
make  war  or  provoke  it  as  plainly  as  his  predecessor  had  ever  done. 
Neither  he  nor  his  Attorney- General  asserted  their  constitutional  au 
thority  to  commence'  aggressive  and  general  hostilities  for  any  cause 
then  existing.  He  received  commissioners  from  the  Southern  States. 


250  POLITICAL  ESSA  YS  AND  LETTERS. 

He  pledged  himself  not  to  retake  the  forts,  arsenals,  dock-yards,  cus 
tom-houses,'  etc.,  then  in  the  hands  of  the  secessionists.  He  promised 
to  continue  the  mail  service  in  the  seceded  States  if  they  would  permit 
him.  He  went  further  still,  and  publicly  assured  the  Southern  peo 
ple  that  he  would  not  irritate  them  by  attempting  to  execute  the  Fed 
eral  laws  at  any  place  where  it  would  be  specially  offensive  to  them. 
All  these  were  concessions  to  the  South  which  Mr.  Buchanan  had 
steadily  refused  to  make ;  and  if  he  had  made  them,  you  would  no 
doubt  have  pronounced  them  treasonable.  But  the  Lincoln  Administra 
tion  did  not  stop  here.  That  Cabinet  voted  six  to  one  in  favor  of  sur 
rendering  Fort  Sumter — Mr.  Blair  being  the  only  dissentient.  The 
President,  if  he  did  not  yield  to  the  majority,  must  have  wavered  a 
considerable  time  ;  the  Secretary  of  State  was  so  sure  of  him,  that  he 
caused  the  South  Carolina  authorities  to  be  informed  that  the  fort 
ivould  be  given  up.  You  will  not  deny  these  facts,  but  you  will  con 
tinue,  as  heretofore,  to  say  that  the  Buchanan  Administration  weakly 
and  wickedly  favored  secession,  while  that  of  Lincoln  was  firmly  and 
faithfully  opposed.  The  man  who  involves  himself  in  such  inconsist 
encies,  whether  from  want  of  information,  want  of  judgment,  or  want 
of  veracity,  is  not  qualified  to  write  on  an  historical  subject. 

I  have  given  more  time  and  space  than  I  intended  to  this  part  of 
your  paper.  But  I  am  addressing  a  man  of  peculiar  character.  To  a 
person  whose  moral  perceptions  are  healthy  and  natural,  I  could  make 
my  defense  in  a  breath.  But  being  required  to  apologize  for  not  vio 
lating  a  sworn  duty,  some  circumlocution  is  necessary. 

Your  mere  railing  accusations  against  Mr.  Buchanan  are  hardly 
worth  a  reply.  The  place  he  is  destined  to  occupy  in  history  does  not 
depend  on  anything*  you  can  say  or  forbear  to  say.  You  have  no 
knowledge  whatever  of  his  character.  Morally,  intellectually,  and 
politically,  he  was  altogether  too  much  of  a  man  for  you  to  compre 
hend.  The  world  will  look  for  its  information  concerning  him  to  the 
acts  of  his  life,  and  to  the  testimony  of  men  who  knew  him  and  had 
minds  large  enough  to  take  his  dimensions.  I  would  not  offer  you  the 
word  of  a  Democrat ;  but  among  those  who  were  with  him  continually 
during  the  last  weeks  of  his  Administration  are  some  who  have  since 
supported  radical  measures  with  a  zeal  warm  enough  to  make  them 
good  witnesses.  Let  General  Dix  speak  his  knowledge  and  say 
whether  he  saw  anything  of  the  treason,  the  weakness,  or  the  wicked 
ness  which  you  impute  so  boldly  and  so  recklessly.  Mr.  King,  the 
Postmaster-General,  can  not  be  ignorant  of  any  important  fact  which 
bears  on  this  question.  Mr.  Holt  has  already,  on  several  occasions, 
delivered  his  testimony.  It  is  a  fervent  tribute  to  the  "  wise  states 
manship  and  unsullied  patriotism"  of  Mr.  Buchanan,  as  well  as  to 
"  the  firm  and  generous  support  "  which  he  constantly  gave  to  men  and 
measures  approved  by  his  conscience.  The  proofs  of  his  great  ability 


POLITICAL  ESSAYS  AND  LETTERS.  251 

and  his  eminent  public  services  are  found  on  every  page  of  his  coun 
try's  history  from  1820  to  1861.  During  all  that  long  period  he 
steadily,  faithfully,  and  powerfully  sustained  the  principles  of  free 
constitutional  government.  This  nation  never  had  a  truer  friend,  nor 
its  laws  a  defender  who  would  more  cheerfully  have  given  his  life  to 
save  them  from  violation.  No  man  was  ever  slandered  so  brutally. 
His  life's  life  was  literally  lied  away.  In  the  last  months  of  his  ad 
ministration  he  devoted  all  the  energies  of  his  mind  and  body  to  the 
great  duty  of  saving  the  Union,  if  possible,  from  dissolution  and  civil 
war.  He  knew  all  the  dangers  to  which  it  was  exposed,  and  it  would, 
therefore,  be  vain  to  say  that  he  was  not  alarmed  for  his  country  ;  but 
he  showed  no  sign  of  unmanly  fear  on  his  own  account.  He  met  all 
his  vast  responsibilities  as  fairly  as  any  Chief  Magistrate  we  ever  had. 
In  no  case  did  he  shrink  from  or  attempt  to  evade  them.  The  accusa 
tion  of  timidity  and  indecision  is  most  preposterous.  His  faults  were 
all  of  another  kind  ;  his  resolutions  once  formed  were  generally  im 
movable  to  a  degree  that  bordered  on  obstinacy.  On  every  matter  of 
great  importance  he  deliberated  cautiously,  and  sometimes  tried  the 
patience  of  his  friends  by  refusing  to  act  until  he  had  made  up  an 
opinion  which  he  could  live  and  die  by.  These  characteristics  explain 
the  fact  that  his  whole  political  life,  from  the  time  he  entered  Con 
gress  until  he  retired  from  the  presidency — all  his  acts,  speeches,  and 
papers — have  a  consistency  which  belongs  to  those  of  no  other  Ameri 
can  statesman.  He  never  found  it  necessary  to  cross  his  own  path  or 
go  back  upon  his  pledges.  His  judgment  was  of  course  not  infallible  ; 
and  in  1861  he  announced  a  determination  with  reference  to  the 
South  Carolina  commissioners  which  I  and  others  thought  erroneous 
but  unchangeable.  Most  unexpectedly,  and  altogether  contrary  to 
his  usual  habit  of  steadfast  self-reliance,  he  consented  to  reconsider 
and  materially  alter  his  decision.  This  change,  and  all  the  circum 
stances  which  brought  it  about,  were  alike  honorable  to  his  under 
standing  and  his  heart.  I  admit  that  you  were  not  the  first  inventor 
of  these  slanders  ;  but  you  ought  to  know  that  it  does  not  become  a 
man  in  your  station  to  take  up  an  evil  report  and  repeat  it,  like  a 
parrot,  without  stopping  to  consider  whether  it  has  any  foundation  or 
not. 

You  are  not  content  with  traducing  Mr.  Buchanan  himself ;  you 
take  up  the  heads  of  departments  who  served  under  him,  and  deal  out 
your  denunciations  upon  nearly  all  in  succession. 

The  Secretary  of  the  Treasury,  you  say,  was  deranging  the  finances 
and  sinking  the  national  credit.  Upon  whom  does  this  fall  ?  Was 
it  Cobb,  or  Thomas,  or  Dix  that  committed  that  crime  ?  The  charge 
is  equally  untrue  whether  made  against  one  or  another.  You  never 
saw  a  scintilla  of  evidence  to  justify  it. 

You  tell  your  readers  that  the  Secretary  of  War  scattered  the  army 


252  POLITICAL  ESSAYS  AND  LETTERS. 

and  sent  guns  and  munitions  to  the  secessionists.  Whatever  Mr. 
Floyd  may  have  done  in  his  lifetime,  it  is  well  established  that  he 
never  did  this.  Numerous  charges  have  been,  and  others  might  be, 
made  against  that  officer  with  some  show  of  truth.  It  is  curious  that 
your  appetite  for  scandal  could  be  satisfied  only  by  selecting  one  which 
is  well  known  to  be  unfounded. 

You  inform  the  country  that  the  Secretary  of  the  Navy  rendered 
that  arm  powerless.  This  is  not  a  new  charge.  It  has  been  made 
several  times  befdre,  and  solemnly  investigated  more  than  once.  Not 
only  has  it  never  been  supported,  but  it  has  uniformly  been  met  by 
such  evidence  of  Mr.  Toucey's  perfect  integrity  that  every  respectable 
man  among  his  political  enemies  acquits  him  without  hesitation.  In 
your  present  reiteration  of  it,  you  are  simply  bearing  false  witness 
against  your  neighbor,  in  flat  violation  of  the  ninth  commandment. 

But  perhaps  the  most  extraordinary  of  all  your  averments  is,  that 
the  Secretary  of  the  Interior  permitted  the  robberg  of  trust  funds. 
You  did  not  mean  it  to  be  understood  that  a  robbery  occurred  which 
he  knew  nothing  about,  and  of  which  he  was,  therefore,  as  innocent  as 
any  other  man.  You  intended  to  make  the  impression  that  he  willfully 
gave  his  permission  to  the  criminal  asportation  of  the  funds  in  question, 
made  himself  an  accessory  to  the  felony  before  the  fact,  and  was  as 
guilty  as  if  he  had  done  it  with  his  own  hands.  You  could  not  possi 
bly  have  believed  this,  unless  you  perversely  closed  your  eyes  against 
the  light  of  plain  truth.  All  the  circumstances  of  the  transaction  to 
which  you  refer  are  as  well  understood  as  anything  in  the  history  of 
the  country.  A  committee  of  Congress,  consisting  of  members  op 
posed  to  the  Secretary,  examined  the  evidence  when  it  was  fresh,  and 
reported  upon  it.  The  correctness  of  their  judgment  has  never  been 
impugned.  In  the  face  of  these  recorded  and  well-known  facts,  you 
deliberately  sit  down  and  write  out,  or  get  somebody  to  write  and 
publish  to  the  world  on  your  authority,  the  accusation  that  Mr. 
Thompson  has  committed  an  offense  which  should  make  him  infa 
mous  forever.  The  force  of  medacity  can  go  no  further.  I  admit 
that  you  are  a  loyal  man,  in  the  modern  sense  of  the  word,  and  a  Sen 
ator  in  Congress  from  a  most  loyal  State  ;  and  it  is  equally  true  that 
Mr.  Thompson  was  a  rebel ;  that  he  was  for  years  an  exile  from  his 
home  and  country,  pursued  wherever  he  went  by  an  Executive  procla 
mation  which  put  a  price  on  his  head.  This  gives  you  an  immense 
advantage  over  him.  But  the  fact  is  still  true  that  no  department  of 
this  Government  was  ever  managed  more  ably  or  more  faithfully  than 
the  Interior  while  he  was  at  the  head  of  it.  You  may  have  all  the 
benefit  of  loyalty,  and  you  may  weigh  him  down  with  the  huge  burden 
of  rebellion  ;  nevertheless,  his  mental  ability,  good  sense,  and  common 
honesty  put  him  so  immeasurably  far  above  you,  that  you  will  never 
in  this  life  be  able  to  get  a  horizontal  view  of  his  character. 


POLITICAL  ESSA  YS  AND  LETTERS.  253 

I  come  now  to  the  more  important  part  of  your  article,  which  di 
rectly  concerns  Mr.  Stanton.  Your  attacks  upon  Buchanan,  Toucey, 
and  Thompson  might  be  safely  passed  in  silence,  but  the  character  of 
Stanton  must  utterly  perish  if  it  be  not  defended  against  your  praise. 

You  give  us  the  first  information  we  ever  had  that  Mr.  Stanton, 
though  acting  with  the  Democratic  party,  was  an  abolitionist  at  heart 
almost  from  his  earliest  youth.  For  this  fact  you  vouch  his  declaration  to 
Judge  Chase  more  than  thirty  years  ago,  at  Columbus,  Ohio  ;  and  you 
attempt  to  corroborate  it  by  citing  his  association  at  Washington  with 
Dr.  Bailey  and  other  abolitionists.  If  you  tell  the  truth,  he  was  the 
most  marvelous  impostor  that  ever  lived  or  died.  Among  us,  his  po 
litical  principles  were  thought  to  be  as  well  known  as  his  name  and 
occupation.  He  never  allowed  his  fidelity  to  be  doubted  for  one  mo 
ment.  It  was  perfectly  understood  that  he  had  no  affinities  whatever 
with  men  of  your  school  in  morals  or  politics.  His  condemnation  of 
the  abolitionists  was  unsparing  for  their  hypocrisy,  their  corruption, 
their  enmity  to  the  Constitution,  and  their  lawless  disregard  for  the 
rights  of  States  and  individuals.  Thus  he  won  the  confidence  of 
Democrats.  On  the  faith  of  such  professions  we  promoted  him  in  his 
business,  and  gave  him  office,  honor,  and  fortune.  But,  according  to 
your  account,  he  was  all  the  while  waiting  and  hoping  for  the  time  to 
come  when  he  could  betray  the  Constitution  and  its  friends  into  the 
cruel  clutches  of  their  enemies.  For  this  cold-blooded  and  deliberate 
treachery  you  bespeak  the  admiration  of  the  American  people.  You 
might  as  well  propose  to  canonize  Judas  Iscariot. 

I  maintain,  on  the  other  hand,  that  he  was  what  he  seemed  to  be,  a 
sound  and  sincere  friend,  political  and  personal,  of  the  men  who  show 
ered  their  favors  on  his  head.  He  had  at  least  the  average  amount  of 
attachment  for  "  the  Constitution  of  the  United  States,  and  for  the 
peace,  good  order,  and  happiness  of  the  same."  As  a  necessary  conse 
quence,  he  dreaded  the  dishonest  and  destructive  rule  which  he  fore 
saw  that  you  would  be  sure  to  establish  as  soon  as  you  could.  His 
democracy  did  not  cease  when  the  war  opened.  In  the  summer  of 
1861,  when  your  anti-constitutional  principles  began  to  be  practically 
carried  out  by  the  kidnapping  of  innocent  citizens,  by  the  suppres 
sion  of  free  speech,  and  by  the  enslavement  of  the  press,  he  imprecated 
the  vengeance  of  God  and  the  law  upon  the  guilty  authors  of  those 
crimes  with  as  much  energy  as  any  Democrat  in  the  nation.  Only  a 
short  time  before  his  appointment  as  Secretary  of  War  his  love  of  lib 
erty  and  legal  justice  impelled  him  to  curse  Mr.  Lincoln  himself  with 
bitter  curses.  He  called  hinrby  contemptuous  names,  and  with  sim 
ian  if  not  with  "swinish  phrase  soiled  his  addition."  I  admit  that  he 
changed  these  sentiments  afterward,  but  I  deny  that  he  had  adopted 
your  way  of  thinking  while  he  pretended  to  concur  in  ours.  His 
conversion  was  a  real  one,  produced  by  what  he  regarded  as  "good 


254  POLITICAL  ESSAYS  AND  LETTERS. 

and  sufficient  reasons  him  thereunto  moving,"  and  it  was  accompa 
nied,  or  immediately  followed,  by  a  corresponding  change  of  his  party 
attitude.  He  was  not  what  you  make  him  out,  a  mere  fawning  hypo 
crite. 

The  issue  is  plainly  made.  The  friends  of  Mr.  Stanton  will  not 
permit  you  to  gibbet  him  in  the  face  of  the  world,  after  death  has 
disarmed  him  of  the  power  of  self-defense.  You  must  prove  the  in 
jurious  allegations  you  make,  or  else  accept  the  just  consequences.  If 
the  Chief-Justice  will  say  that  he  knows  Mr.  Stanton  to  have  been 
"in  entire  agreement "  with  the  Abolition  party  thirty  years  ago,  his 
testimony  may  silence  denial.  But  you  must  not  trifle  with  us  ;  we 
will  hold  you  to  strict  proof  ;  hearsay  evidence  will  not  be  received  ; 
least  of  all  will  the  fact  be  admitted  upon  the  second-hand  statement 
of  a  person  who  thinks,  as  you  manifestly  do  think,  that  deception, 
fraud,  and  false  pretenses  are  an  honor  to  the  man  who  practiced 
them. 

Next  in  chronological  order  is  your  assertion  that  Mr.  Stanton, 
while  yet  a  private  citizen,  advised  Mr.  Buchanan  that  it  was  the  duty 
and  the  right  of  the  Federal  Government  to  coerce  seceding  States  ; 
that  is  to  say,  make  war  against  all  the  inhabitants  of  every  State  in 
which  an  ordinance  of  secession  had  been  or  should  be  passed.  Now, 
mark  how  plain  a  tale  will  put  you  down.  Mr.  Stanton  never  was  con 
sulted  on  that  subject  by  the  President  until  after  he  was  Attorney-Gen 
eral  ;  and  he  never  at  any  time  gave  such  advice  as  you  put  into  his 
mouth.  He  never  entertained  any  opinion  of  that  kind,  for  he  was  a 
lawyer  of  large  capacity  and  could  not  believe  an  absurdity.  He  had 
too  much  regard  for  his  professional  character  to  maintain  a  legal 
proposition  which  he  knew  to  be  false.  He  certainly  would  not  have 
so  debased  himself  in  the  eyes  of  the  Administration  with  whom  he 
was  particularly  desirous,  at  that  time,  to  stand  well. 

On  this  point  I  wish  to  be  very  distinct.  I  aver  that  Mr.  Stanton 
thoroughly,  cordially,  and  constantly  approved  of  and  concurred  in 
the  constitutional  doctrines  which  you  denounce  as  timid  and  treason 
able.  He  indorsed  the  opinion  of  his  predecessor  with  extravagant 
and  undeserved  laudation  ;  he  gave  his  adhesion  to  the  annual  mes 
sage  in  many  ways  ;  and  the  special  message  of  8th  January,  1861, 
which  expressed  the  same  principles  with  added  emphasis,  was  care 
fully  read  over  to  him  before  it  was  sent  to  Congress,  and  it  re 
ceived  his  unqualified  assent.  The  .existing  evidence  of  this  can  be 
easily  adduced ;  it  is  direct  as  well  as  circumstantial,  oral  as  well  as 
documentary,  and  some  of  it  is  in  the  handwriting  of  Mr.  Stanton 
himself.  If  you  are  willing  to  put  the  question  into  a  proper  form  for 
judicial  investigation,  I  will  aid  you  in  doing  so,  and  give  you  an  op 
portunity  to  make  out  your  case  before  an  impartial  tribunal. 

If  your  statement  be  true  that  Mr.  Stanton  disbelieved  in  the  prin- 


POLITICAL  ESSA  YS  AND  LETTERS.  255 

ciples  to  which  the  Administration  was  unchangeably  pledged,  how  did 
he  come  to  take  office  under  it  ?  Was  he  so  anxious  for  public  em 
ployment  that  he  consented  to  give  up  his  own  convictions  and  assist 
in  carrying  out  measures  which  his  judgment  condemned  as  the  off 
spring  of  timidity  and  treason  ?  Or,  did  he  accept  the  confidence  of 
the  President  and  the  Cabinet  with  a  predetermined  intent  to  betray 
it"?  Either  way  you  make  him  guilty  of  unspeakable  baseness. 

But  conceding  that  he  would  accept,  why  did  the  President,  with 
the  consent  of  his  advisers,  give  the  appointment  to  a  man  whom  they 
knew  to  be  hostile  to  them  upon  points  so  vital  not  only  to  the  public 
interests  but  their  own  characters  ?  That  at  such  a  time  they  would 
invite  an  undisguised  enemy  into  their  counsels,  is  a  tale  as  wildly  im 
probable  as  any  ever  swallowed  by  the  credulity  of  the  Salem  witch- 
finders.  Your  own  consciousness  of  this  compels  you  to  explain  by 
attributing  it  to  a  special  intervention  of  Divine  Providence.  Your 
impious  theory  is  that  Almighty  God  procured  this  appointment  mi 
raculously,  in  order  that  you,  the  enemies  of  the  American  Consti 
tution,  might  have  a  spy  in  the  camp  of  its  friends.  This  will  not 
serve  your  turn.  Reason  never  refers  a  human  event  to  supernatural 
agency,  unless  it  be  impossible  to  account  for  it  in  any  other  way. 
The  mystery  of  this  case  is  easily  cleared  up  by  the  hypothesis  that 
you  have  misrepresented  it  from  beginning  to  end  ;  which  is  no  mira 
cle  at  all,  but  quite  in  the  natural  order  of  things. 

The  truth  is,  Mr.  Stanton  was  in  perfect  accord  with  the  Adminis 
tration,  before  and  after  he  became  a  part  of  it,  on  every  question  of 
fundamental  principle.  He  had  unlimited  confidence  in  the  men 
with  whom  he  was  acting,  and  they  confided  in  him.  For  his  chief 
and  some  of  his  colleagues  he  professed  an  attachment  literally  bound 
less  ;  for  all  of  them  who  stayed  during  the  term,  and  for  Thompson, 
who  did  not  stay,  he  was  warm  in  his  friendship.  You  would  now 
have  us  believe  that  these  were  merely  the  arts  of  an  accomplished  im 
postor  ;  that  while  he  was,  in  appearance,  zealously  co-operating  with 
us,  he  was  reporting  to  you  that  "he  saw  treason  in  every  part  of  the 
Government "  ;  and  that  he  was  secretly  using  all  the  means  in  his 
power  to  stir  up  the  vilest  passions  against  us. 

Some  overt  acts  of  the  treachery  you  ascribe  to  him  are  curious  ; 
for  instance,  the  Sumner  story,  which  you  tell  with  singular  brevity 
and  coolness.  Mr.  Sumner  called  on  him  at  his  office,  for  what  pur 
pose  you  do  not  disclose.  Mr.  Stanton  did  not  receive  his  visitor 
either  with  the  politeness  of  a  gentleman  or  the  courtesy  due  to  a 
Senator,  much  less  with  the  cordiality  of  a  friend ;  but  hustled  him 
out  of  the  building  as  if  ashamed  to  be  seen  with  him  in  daylight. 
He  told  him  expressly  that  he  did  not  dare  to  converse  with  him 
there,  but  would  see  him  at  one  o'clock  that  night.  The  hour  came, 
and  then,  when  the  city  was  wrapped  in  sleep,  he  skulked  away  to  the 


256  POLITICAL  ESSAYS  AND  LETTERS. 

meeting-place,  where,  under  the  coyer  of  darkness,  he  whispered  the 
tales  which  he  did  not  dare  to  utter  in  the  hearing  of  the  parties  they 
were  intended  to  ruin.  And  those  parties  were  his  friends  and  bene 
factors  !  Into  what  unfathomed  gulfs  of  moral  degradation  must  the 
man  have  fallen  who  would  be  guilty  of  this  !  But  remember,  this  is 
another  second-hand  story,  and  you  are  not  a  competent  witness.  We 
will  trouble  you  to  call  Mr.  Sumner,  if  you  please.  Let  him  testify 
what  treason  Stanton  disclosed,  and  explain,  if  he  can,  how  this 
midnight  and  secret  information  against  men  whom  he  was  afraid  to 
confront,  is  consistent  with  Mr.  Stanton's  character  as  a  courageous, 
outspoken,  and  honest  man. 

He  said  nothing  whatever  to  us  about  the  treason  which  he  saw  in 
every  part  of  the  Government.  He  made  no  report  of  his  discoveries 
to  the  President.  He  maintained  unbroken  his  fraternal  relations 
with  his  colleagues.  By  your  own  account,  he  admitted  to  Mr.  Sum 
ner  that  he  did  not  dare  to  speak  of  such  a  thing  even  in  his  own 
office,  lest  it  might  reach  the  ears  of  his  associates  in  the  Adminis 
tration.  Among  the  members  of  Congress  whom  you  name  as  the 
recipients  of  his  secret  communications,  not  one  man  of  moderate 
views  is  included  ;  much  less  did  he  speak  to  any  friend  of  the  par 
ties  accused.  He  cautiously  selected  their  bitterest  enemies,  and 
poured  his  venom  into  hearts  already  festering  with  spite.  The  House 
raised  a  committee  "  to  investigate  treasonable  machinations  and  con 
spiracies,"  upon  which  there  were  members  of  both  parties.  Stanton 
did  not  go  before  it  and  tell  his  story ;  nor  did  he  mention  the  subject 
to  Cochrane,  Eeynolds,  or  Branch  ;  but  he  "  made  an  arrangement  by 
which  Messrs.  Howard  and  Dawes  were  informed  "  of  whatever  they 
wanted  to  know.  It  appears,  too,  that  a  committee  of  vigilance  was 
organized  by  the  more  active  Republican  members  of  Congress ;  in 
other  words,  the  extreme  partisans  of  both  Houses  got  up  a  secret  body 
of  their  own,  not  to  perform  any  legal  duty  pertaining  to  their  offices, 
not  to  devise  public  measures  for  averting  the  ruin  which  threatened 
the  country,  but  to  prowl  about  in  the  dark  for  something  to  gratify 
personal  malice  or  make  a  little  capital  for  their  party.  You  were  a 
member  of  that  committee,  as  it  was  fit  you  should  be,  and  Mr.  Stan- 
ton  gave  you  "  warnings  and  suggestions  "  how  to  proceed.  This  is 
what  you  call  "rising  in  that  crisis  above  the  claims  of  partisanship." 
At  night  he  assisted  you  to  rake  the  sewers  in  search  of  materials  to 
bespatter  his  colleagues,  and  every  morning  he  appeared  before  them 
to  " renew  the  assurances  of  his  distinguished  consideration."  It  was 
thus  that,  in  your  estimation,  "he  consecrated  himself  to  the  lofty 
duties  of  an  exalted  patriotism." 

What  cargoes  of  defamatory  falsehood  he  must  have  consigned  to 
your  keeping  !  You  do  not  break  the  foul  bulk,  but  you  have  given 
us  some  samples  which  deserve  examination.  He  denounced  Mr. 


POLITICAL  ESSAYS  AND  LETTERS.  257 

Toucey  as  false  to  his  country,  inspired  Dawes's  resolution  against 
him,  and  expressed  the  belief  that  he  ought  to  be  arrested.  Let  us 
look  at  this  a  moment. 

To  Mr.  Toucey's  face  Mr.  Stanton  breathed  no  syllable  of  censure 
upon  his  official  conduct  as  head  of  the  Navy  Department.  To  the 
President  or  Cabinet  he  expressed  no  doubt  of  his  wisdom,  much  less 
of  his  honesty.  He  met  him  every  day  with  a  face  of  smiling  friend 
ship.  Toucey  certainly  had  not  the  remotest  idea  that  Stanton  was 
defaming  him  behind  his  back,  or  conspiring  with  abolitionists  to  de 
stroy  his  reputation.  Can  it  be  possible  that  Stanton  was  the  author 
of  the  Dawes  resolution  ? 

That  resolution  is  found  in  the  "Congressional  Globe,"  second 
session,  Thirty-sixth  Congress,  1860-'61,  part  second,  pp.  1423, 1424. 
The  proceeding  was  begun,  no  doubt,  in  the  hope  of  finding  something 
on  which  the  charge  could  be  founded  of  scattering  the  navy  to  pre 
vent  it  being  used  against  the  South.  But  that  failed  miserably  ;  and 
the  committee  reported  nothing  worse  than  "  a  grave  error  "  of  the 
Secretary  in  accepting  without  delay  or  inquiry  the  resignation  of  cer 
tain  naval  officers.  Even  this  had  no  foundation  in  law  or  fact.  Its 
truth  was  denied  and  the  evidence  called  for  ;  none  was  produced. 
The  right  to  explain  and  defend  was  demanded,  but  the  gag  of  the 
previous  question  was  applied  before  a  word  could  be  said.  The  ac 
cusers  knew  very  well  that  it  would  not  bear  the  slightest  investiga 
tion.  Mr.  Sickles  said  truly  (amid  cries  of  "  Order  !  ")  that  censure 
without  evidence  disgraces  only  those  who  pronounce  it.  Mr.  Tou 
cey's  reputation  was  never  injuriously  affected  by  it  in  the  estimation 
of  any  fair-minded  man.  But  you  fish  it  up  from  the  oblivion  to 
which  it  has  been  consigned,  and  try  to  give  it  decency  and  dignity  by 
saying  that  Stanton  inspired  it.  You  do  not  appear  to  perceive  the 
hideous  depth  to  which  your  assertion,  if  true,  would  drag  him  down. 
It  is  not  true  ;  the  whole  business  bears  the  impress  of  a  different 
mind. 

Mr.  Stanton  also  suggested  that  his  colleague  and  friend  Toucey 
ought  to  be  arrested.  This  could  not  have  been  a  proposition  to  take 
him  into  legal  custody  on  a  criminal  charge  regularly  made.  That 
would  have  been  utterly  impossible  and  absurd.  The  Dawes  commit 
tee  itself  could  find  nothing  against  him  but  an  error  of  judgment. 
The  suggestion  must  have  been  to  kidnap  him,  without  an  accusation 
or  proof  of  probable  cause,  and  consign  him  to  some  dungeon  with 
out  trial  or  hope  of  other  relief.  If  Stanton  attempted  to  get  this 
done,  he  was  guilty  of  such  perfidy  as  would  have  shocked  the  bas 
est  pander  in  the  court  of  Louis  XV.  But  to  confute  your  libel 
upon  Toucey  and  Stanton  both,  it  is  only  necessary  to  recollect  the 
fact  that  kidnapping  of  American  citizens  was  at  that  time  wholly 
unknown  and  absolutely  impossible.  We  were  living  under  a  Demo- 
17 


258  POLITICAL  ESSAYS  AND  LETTERS. 

cratic  Administration,  the  country  was  free,  and  law  was  supreme. 
Tyranny  had  not  yet  sunk  its  bloody  fangs  into  the  vitals  of  the  na 
tional  liberty.  The  systematic  perjury  which  afterward  made  the 
Constitution  a  dead  letter  was  not  then  established  as  a  rule  of  po 
litical  morality. 

Your  whole  account  of  the  "  Cabinet  scene  "  at  which  Floyd, 
" raging  and  storming,  arraigned  the  President  and  Cabinet,"  and 
"  the  President  trembled  and  grew  pale,"  and  "Stanton  met  the  baf 
fled  traitor  and  his  fellow-conspirators  with  a  storm  of  fierce  and  fiery 
denunciation,"  is  a  pure  and  perfectly  baseless  fabrication.  It  is  ab 
surd  to  boot.  What  was  Floyd's  arraignment  of  the  President  and 
the  Cabinet  for  ?  You  say  for  violating  their  pledges  to  the  seces 
sionists  ;  and  the  charge  against  the  President  and  the  Cabinet  of 
violating  their  pledges  was  predicated  solely  on  the  fact  that  Colonel 
Anderson  had  removed  from  Fort  Moultrie  to  Fort  Sumter;  and 
Floyd  was  disappointed  in  Colonel  Anderson,  whom  he  "had  ex 
pected,"  as  a  Southern  man,  to  "  carry  out  his  purposes  in  the  in 
terest  of  treason."  This  is  mere  driveling  at  best,  and  it  is  completely 
exploded  by  the  record,  which  shows  that  Colonel  Anderson's  trans 
fer  of  his  force  from  Fort  Moultrie  to  Fort  Sumter  was  in  literal  obedi 
ence  to  orders  from  the  President,  which  Floyd  himself  had  trans 
mitted.  Moreover,  Floyd  at  that  time  was  not  in  a  condition  to 
arraign  anybody.  He  himself  had  just  before  that  been  not  only  ar 
raigned  but  condemned,  and  the  President  had  notified  him  that  he 
would  be  removed  if  he  did  not  resign.  Was  it  this  broken-down 
and  powerless  man  who  made  the  President  tremble  and  grow  pale 
by  complaining  that  a  subordinate  had  unexpectedly  obeyed  his  own 
orders  ?  You  are  not  silly  enough  to  say  so.  Was  it  Stanton's 
"  storm  of  fierce  and  fiery  denunciation  "  ?  Stan  ton  was  no  stormer 
in  the  presence  of  such  men  as  he  then  had  to  deal  with.  His  lan 
guage  was  habitually  deferential,  his  whole  bearing  decent,  and  his 
behavior  at  the  council-board  was  entirely  free  from  the  insolence  you 
impute  to  it.  Your  tales  do  not  hang  together.  No  one  can  give 
credence  to  your  report  of  bold  and  stormy  denunciation  by  Stanton 
in  the  presence  of  his  chief  and  his  colleagues,  and  at  the  same  time 
believe  what  you  say  of  him  at  another  place,  where  you  describe  him 
as  a  dastard,  skulking  about  in  the  dead  of  night  to  find  a  place  of  con 
cealment  remote  enough  to  make  him  safe,  and  confessing  that  he  did 
not  dare  to  breathe  his  accusation  in  the  face  of  day.  The  crawling 
sycophant — the  stealthy  spy — who  bargained  so  carefully  for  darkness 
and  secrecy  when  he  made  his  reports,  must  have  been  wholly  unfitted 
to  play  the  part  of  Jupiter  Tonans  in  a  square  and  open  conflict.  It 
is  not  possible  that  the  fearless  Stanton  of  your  "  Cabinet  scene  " 
could  be  the  same  Stanton  who,  at  one  o'clock  in  the  night,  was 
"squat  like  a  toad  "  at  the  ear  of  Sumner — 


POLITICAL  ESSA  YS  AND  LETTERS.  259 

"  Essaying  by  his  devilish  arts  to  reach 
The  organs  of  his  fancy." 

I  take  it  upon  me  to  deny  most  emphatically  that  Mr.  Stanton 
ever  "wrote  a  full  and  detailed  account  of  that  Cabinet  scene"  by 
which  you  can  have  the  least  hope  of  being  corroborated.  I  can  not 
prove  a  negative ;  but  I  can  show  that  your  assertion  is  incredible. 
That  he  should  have  coolly  indited  a  letter,  even  though  he  never 
sent  it,  filled  with  foolish  brags  of  his  own  prowess,  which  half  a 
dozen  men  then  living  could  prove  to  be  false,  was  not  consistent 
either  with  his  prudence,  veracity,  or  taste.  Besides,  he  often  spoke 
with  me  about  the  events  of  that  period,  and  never  in  my  hearing 
did  he  manifest  the  slightest  disposition  to  misunderstand  or  misrep 
resent  them.  On  the  contrary,  when  a  statement  resembling  yours 
about  a  Cabinet  scene  was  published  in  a  London  paper,  I  suggested 
that  he  ought  to  contradict  it ;  and  he  replied,  explaining  how  and  by 
whom  it  had  been  fabricated,  but  said  it  was  not  worth  a  contradic 
tion,  for  every  man  of  common  intelligence  would  know  it  to  be  a 
mere  tissue  of  lies.  You  can  not  destroy  Stanton's  character  for 
sense  and  decency  by  citing  his  own  authority  against  himself.  Nor 
can  you  find  any  other  proof  to  sustain  the  story.  It  is  the  weak  in 
vention  of  some  scurvy  politician,  who  sought  to  win  the  patronage 
of  one  administration  by  maligning  another  : 

"  Some  busy  and  insinuating  rogue, 
Some  cogging,  cozening  slave,  to  get  some  office, 
Hath  devised  this  slander." 

Your  account  of  his  raid  upon  the  Treasury,  in  company  with 
Governor  Morton,  would  look  very^  strange  in  a  panegyric  made  by 
anybody  else  but  you.  I  will  restate  the  facts  you  have  given,  but  with 
out  the  drapery  by  which  you  conceal  from  yourself  the  view  of  them 
which  must  unavoidably  be  taken  by  all  men  who  believe  in  the  obli 
gation  of  any  law,  human  or  divine.  In  the  winter  of  1863,  the  Legis 
lature  of  Indiana  was  dissolved  before  the  appropriations  had  been 
made  to  carry  on  the  State  government  or  aid  in  putting  troops  in 
the  field,  Of  course,  Congress  did  not  and  could  not  make  appropri 
ations  for  carrying  on  the  State  government,  or  putting  troops  in  the 
field,  which  the  State  was  bound  to  raise  at  her  own  expense.  But 
the  Governor  determined  to  get  what  money  he  wanted  without  au 
thority  of  law,  and  he  looked  to  Washington  for  assistance.  Presi 
dent  Lincoln  declined  to  aid  him,  because  no  money  could  be  taken 
from  the  Treasury  without  appropriation.  Mr.  Stanton,  being  applied 
to,  saw  the  critical  condition  of  the  Governor,  and,  without  scruple, 
joined  him  in  his  financial  enterprise.  He  drew  a  warrant  for  a  quar 
ter  of  a  million  dollars,  and  gave  it  to  the  Governor  to  spend  as  he 
pleased,  not  only  without  being  authorized  by  any  appropriation  for 


260  POLITICAL  ESSAYS  AND  LETTERS. 

that  purpose,  but  in  defiance  of  express  law  appropriating  the  same 
money  to  another  and  a  totally  different  object.  If  this  be  true,  the 
guilt  of  the  parties  can  hardly  be  overcharged  by  any  words  which  the 
English  language  will  supply.  It  was  getting  money  out  of  the  pub 
lic  Treasury,  not  only  unlawfully,  but  by  a  process  as  dishonest  as  lar 
ceny.  It  involved  the  making  of  a  fraudulent  warrant,  of  which  the 
moral  turpitude  was  no  less  than  that  committed  by  a  private  individ 
ual  when  he  fabricates  and  utters  a  false  paper.  It  was  a  gross  and 
palpable  violation  of  the  oaths  which  the  Governor  and  Secretary  had 
both  taken.  It  was,  by  the  statute  of  1846,  a  felonious  embezzlement 
of  the  money  thus  obtained,  punishable  by  a  fine  and  ten  years'  im 
prisonment  in  the  penitentiary.  The  parties,  according  to  your  ver 
sion,  were  both  conscious  of  the  high  crime  they  were  perpetrating, 
for  you  make  one  say  to  the  other,  "  If  the  cause  fails,  you  and  I  will 
be  covered  with  prosecutions,  and  probably  imprisoned  or  driven  from 
the  country."  You  do  not  diminish  or  mitigate  the  offense  one  whit 
by  saying  that  the  money  was  afterward  accounted  for.  A  felony  can 
not  be  compounded  or  condoned  by  a  simple  restitution  of  the  spoils  ; 
and  the  law  I  have  cited  was  made  expressly  to  prevent  officers 
charged  with  the  safe-keeping,  transfer,  or  disbursement  of  public 
money  from  using  it  to  accommodate  friends  in  a  "  critical  condition." 
But  what  will  be  said  of  your  trustworthiness  as  a  contributor  to  his 
tory  when  the  public  comes  to  learn  that  this  whole  story  is  bogus  ? 
I  pronounce  it  untrue  in  the  aggregate  and  in  the  detail — in  the  sum 
total  and  in  every  item.  The  truth  is  this  :  In  1863  the  Democratic 
majority  of  the  Indiana  Legislature  were  ready  and  willing  to  pass 
their  proper  and  usual  appropriation  bills,  but  were  prevented  by  the 
Republican  minority,  who  "bolted"  and  left  the  House  without  a 
quorum  until  the  constitutional  limit  of  their  session  expired.  The 
Governor  refused  to  reconvene  them,  and  thus,  by  his  own  fault  and 
that  of  his  friends,  he  was  without  the  ways  and  means  to  pay  the  cur 
rent  expenses  of  the  State.  He  was  wrong,  but  his  error  was  that  of 
a  violent  partisan,  not  the  crime  of  a  corrupt  magistrate.  He  did  not 
come  to  Washington  with  any  intention  to  relieve  his  necessities  by 
plundering  the  Federal  Treasury.  He  made  no  proposition  either  to 
Mr.  Lincoln  or  Mr.  Stan  ton,  that  they  or  either  of  them  should  be 
come  his  accomplices  in  any  such  infamous  crime.  His  purpose  was  to 
demand  payment  of  a  debt  due,  and  acknowledged  to  be  due,  from  the 
United  States  to  the  State  of  Indiana.  The  money  had  been  appropri 
ated  by  Congress  to  pay  it,  and  it  was  paid  according  to  law  !  I  know 
not  how  Mr.  Morton  may  like  to  see  himself  held  up  as  a  felon  con 
fessing  his  guilt,  but  I  can  say  with  some  confidence  that,  if  Mr. 
Stanton  were  alive,  he  would  call  you  to  a  very  severe  reckoning. 

What  must  amaze  the  readers  of  your  article  more  than  anything 
else  is  the  perfect  sincerity  of  the  belief  which  you  express,  directly  or 


POLITICAL  ESSAYS  AND  LETTERS.  261 

indirectly,  in  every  line  of  it,  that  the  base  misconduct  you  attribute 
to  Mr.  Stan  ton  is  eminently  praiseworthy.  You  seem  to  be  wholly 
unconscious  of  defaming  the  man  you  meant  to  eulogize.  But,  if 
your  facts  be  accepted,  the  honor  and  honesty  of  them  will  not  be 
measured  by  your  standards.  It  may  be  true  that  public  opinion  has 
of  late  been  sadly  debauched  ;  but  the  American  people  have  not  per 
manently  changed  their  code  of  morality.  Good  faith  between  man 
and  man,  personal  integrity,  social  fidelity,  observance  of  oaths,  and 
obedience  to  the  laws  which  hold  society  together,  have  heretofore  been 
numbered  among  the  virtues,  and  they  will  be  again.  The  govern 
ment  of  God  has  not  been  reconstructed.  Fraud  or  force  may  abolish 
the  Constitution,  but  the  Ten  Commandments  and  the  Golden  Rule 
are  beyond  your  reach  ;  some  persons  have  faith  enough  to  believe 
that  even  "  the  gates  of  hell  shall  not  prevail  against  them." 

The  odious  character  you  have  given  Mr.  Stanton  is  not  merely 
unjust  in  itself,  but,  if  uncontradicted,  it  must  lead  to  other  miscon 
ceptions  of  him.  Besides  the  offenses  against  law,  justice,  humanity, 
and  truth  which  you  have  enumerated  and  assigned  to  him  for  his 
glorification,  he  has  been  charged  with  others  which,  if  established, 
must  expose  him  to  universal  execration.  For  instance,  it  is  asserted 
that,  in  the  winter  of  1861,  when  he  was  a  member  of  the  Cabinet,  he 
gave  to  Governor  Brown,  of  Mississippi,  the  most  emphatic  assurance 
of  his  conviction  that  secession  was  right,  and  urged  him  to  "go  on" 
with  it ;  that  in  1862,  while  he  was  writing  the  most  affectionate  let 
ters  to  General  McClellan,  he  not  only  maligned  him  at  Washington, 
but  maliciously  plotted  his  defeat  and  the  destruction  of  his  army  be 
fore  Richmond  ;  that  he  refused  in  1864  to  receive  the  Andersonville 
prisoners  when  offered  freely  without  ransom,  exchange,  or  other 
equivalent,  though  he  knew  if  left  there  they  must  perish  miserably 
for  want  of  the  medicine  and  food  which  their  captors  had  not  the 
means  to  give  them.  These  accusations,  you  are  aware,  have  often 
been  made  with  horrible  aggravation  which  I  need  not  repeat.  His 
friends  have  denied  and  discredited  them,  mainly  on  the  ground  that 
his  character  was  wholly  above  such  imputations.  But  you  have  done 
your  full  best  to  make  this  defense  worthless.  If  he  wore  the  cloak  of 
constitutional  Democracy  with  us,  and  put  on  the  livery  of  abolition 
ism  with  you,  why  should  he  not  assume  the  garb  of  a  secessionist 
with  men  of  the  South  ?  If  he  tried  to  get  his  friend  Toucey  kid 
napped,  what  moral  principle  could  hinder  him  from  contriving  the 
ruin  of  his  friend  McClellan  ?  If  he  craftily  exerted  himself  at  your 
end  of  the  avenue  to  bring  on  a  bloody  civil  war,  which  according  to 
his  own  declarations  at  our  end  was  unlawful  and  causeless,  what  crime 
against  human  life  was  he  not  capable  of  committing?  If  he  will 
fully  left  our  prisoners  to  certain  starvation,  and  then  managed  falsely 
to  throw  the  odium  of  their  death  upon  the  political  enemies  of  the 


262  POLITICAL  ESSAYS  AND  LETTERS. 

party  in  power,  and  thus  contributed  very  largely  to  the  enslavement 
of  the  Southern  States,  was  not  that  an  act  of  "  intense  and  abound 
ing  patriotism/'  as  well  worthy  of  your  praise  as  some  others  for 
which  you  have  bestowed  it  ?  Those  who  give  credit  to  you  will  find 
it  perfectly  logical  to  believe  the  worst  that  has  ever  been  said  of  him. 

Sejanus  has  passed  for  about  the  worst  specimen  of  ministerial 
depravity  whom  we  have  any  account  of ;  but  nothing  is  recorded  of 
him  which  might  not  be  believed  of  Stanton,  if  you  are  regarded  as 
credible  authority  ;  for  you  have  made  it  a  labor  of  love  to  paint  him 
as  a  master  in  the  loathsome  arts  of  treachery,  dissimulation,  and  false 
hood — unfaithful  alike  to  private  friendship  and  to  public  duty. 
With  the  talents  he  possessed  and  the  principles  you  ascribe  to  him, 
he  might  have  made  an  invaluable  grand  vizier  to  a  Turkish  Sultan 
—provided  the  Sultan  were  in  the  prime  of  life  and  had  no  powerful 
brother  near  the  throne  ;  but  in  a  free  country  such  a  character  can 
not  be  thought  of  without  disgust  and  abhorrence. 

In  your  eyes  the  "  intense  and  abounding  patriotism"  of  Stanton 
is  sufficient  to  atone  not  only  for  all  the  faults  he  had,  but  for  all  the 
offenses  against  law  and  morals  which  the  utmost  fertility  of  your 
imagination  can  lay  to  his  charge  ;  and  patriotism  in  your  vocabulary 
means  devotion  to  the  interests  of  that  political  sect  which  has  you 
for  one  of  its  priests.  This  will  not  suffice.  You  can  not  safely 
blacken  a  man  with  one  hand  and  neutralize  the  effect  by  daubing  on 
the  whitewash  of  patriotism  with  the  other.  Patriotism,  in  its  true 
sense,  does'indeed  dignify  and  adorn  human  nature.  It  is  an  exalted 
and  comprehensive  species  of  charity,  which  hides  a  multitude  of  sins. 
The  patriotism  of  Washington,  which  laid  broad  and  deep  the  founda 
tion  of  free  institutions  and  set  the  noble  example  of  implicit  obedi 
ence  to  the  laws ;  the  patriotism  of  John  Hampden,  who  voluntarily 
devoted  his  fortune  and  his  life  to  the  maintenance  of  legal  justice  ; 
the  patriotism  of  Cato,  who  resisted  the  destructive  madness  of  his 
countrymen  and  greatly  fell  with  a  falling  state  ;  the  patriotism  of 
Daniel  O'Connell,  who  spent  his  time  and  talents  in  constant  efforts  to 
relieve  his  people  from  the  galling  yoke  of  clerical  oppression  ;  the  pa 
triotism  of  the  elder  Pitt,  who,  speaking  in  the  cause  of  universal  lib 
erty,  loudly  rejoiced  that  America  had  resisted  the  exactions  of  a 
tyrannical  Parliament— to  such  patriotism  some  errors  may  be  par 
doned.  When  men  like  these  are  found  to  have  committed  a  fault,  it 
is  well  that  history  should  deal  with  it  tenderly— 

"  And,  sad  as  angels  for  the  good  man's  sin, 
Weep  to  record  and  blush  to  give  it  in." 

But  the  loyalty  that  tramples  on  law— the  fidelity  which  stabs  the 
liberties  it  ought  to  protect— the  public  zeal  which  expends  itself  in 
gratifying  the  vindictive  or  mercenary  passions  of  one  party  by  the 


.     POLITICAL  ESSA  YS  AND  LETTERS.  263 

unjust  oppression  of  another — this  kind  of  patriotism  has  less  claim 
to  the  admiration  of  the  world.  It  is  a  cheap  thing,  readily  supplied 
to  any  faction  unprincipled  enough  to  pay  for  it.  It  is  entirely  too 
"intense  and  abounding,"  and  its  intensity  and  abundance  are  always 
greatest  in  the  worst  times.  It  does  not  sanctify  evil  deeds.  If  it  be 
not  a  sin  in  itself,  it  certainly  deserves  to  be  ranked  among  what  Dr. 
Johnson  calls  "the  rascally  virtues." 

Mr.  Stanton's  reputation  is  just  now  in  a  critical  condition.  He 
took  no  care  of  it  while  he  lived,  and  he  died,  like  Bacon,  leaving  a 
vulnerable  name  ''to  men's  charitable  speeches."  He  needs  a  more 
discriminating  eulogist  than  you,  and  a  far  better  defense  than  I  am 
able  to  make.  I  have  not  attempted  to  portray  his  good  qualities  ;  I 
intended  only  to  protest  against  jour  shameless  parade  of  vices  to 
which  he  was  not  addicted,  and  crimes  which  he  never  committed  ;  and 
this  I  have  done,  not  only  because  it  is  just  to  him,  but  necessary  for 
the  vindication  of  others. 

ii. 

To  the  Hon.  Henry  Wilson,  Senator  from  Massachusetts  : 

CONTRARY  to  my  first  intention,  and  not  without  reluctance,  I 
lay  aside  other  business  of  far  greater  importance  while  I  take  a  brief 
review  of  your  supplemental  eulogy  on  Stanton.  The  occurrences 
which  caused  this  change  of  mind  might  require  explanation,  but 
they  are  too  entirely  personal  to  occupy  any  space  in  these  pages. 
Without  more  preface  I  give  you  my  thought  on  your  latest  essay. 

You  take  violent  exceptions  to  my  former  letter  as  being  vitupera 
tive  and  ill-tempered.  Let  us  see  how  the  account  stands  between  us 
on  the  score  of  mere  manners,  and  then  determine  whether  you  have 
a  right  to  set  yourself  up  as  an  arbiter  elegantiarum. 

You  wrote,  or  caused  to  be  written,  and  published  in  a  magazine 
of  large  circulation,  an  article  in  which  you  attacked  the  reputation 
of  certain  persons  in  a  style  so  scandalous  that  vituperation  is  no  name 
for  it.  Without  reserve  or  qualification  you  pronounced  them  guilty 
of  the  worst  crimes  known  among  men.  The  specific  acts  of  which 
you  accused  them,  and  the  opprobrious  epithets  you  applied  to  them, 
were  as  insulting  as  you  could  make  them.  Most  of  the  gentlemen 
thus  assailed  were  dead  ;  but  that  made  no  difference  to  you — your 
invective  was  not  checked  by  any  regard  for  the  feelings  of  friends  or 
relatives.  The  indecency  of  this  was  greatly  aggravated  by  the  fact  that 
you  put  it  in  the  form  of  a  funeral  panegyric  upon  a  man  whose  recent 
and  sudden  death  should  have  sobered  your  party  rage  and  solemnized 
your  heart,  or  at  least  operated  as  a  temporary  sedative  upon  your  ap 
petite  for  defamation.  What  was  I  to  do  ?  My  first  impulse  was — 
no  matter  what ;  I  did  not  obey  it.  But  I  concluded  that  all  the  pur 
poses  of  a  fair  vindication  might  be  accomplished  by  a  simple  contra 
diction  of  your  statements,  coupled  with  the  plain  reasons  which  would 


264  POLITICAL  ESSA  YS  AND  LETTERS. 

show  them  to  be  unworthy  of  belief.  I  did  this,  and  I  did  no  more. 
I  did  it  in  terms  so  free  from  unnecessary  harshness  that  I  am  amazed 
this  moment  at  my  own  moderation.  But  you  affirm  my  denial  to  be 
an  act  of  "  reckless  audacity  "  ;  in  your  eyes  my  defense  is  an  o/fense. 
I  really  can  not  understand  this,  unless  you  suppose  that  your  politi 
cal  opponents  have  no  rights,  even  of  refutation,  which  you  are  bound 
to  respect,  and  that  slander,  like  other  injuries,  is  consecrated  by  loy 
alty  when  a  Democrat  is  the  sufferer. 

You  make  no  attempt  to  impugn  the  soundness  or  truth  of  the  law 
as  I  gave  it  to  the  President  on  the  20th  of  November,  1860.  That 
opinion  was  very  simple  as  it  stood  upon  the  record ;  and  in  my  for 
mer  letter  I  gave  you  the  elementary  principles,  clarified  by  the  most 
familiar  illustrations,  and  brought  the  whole  subject  down  to  the  level 
of  the  lowest  understanding.  Besides,  you  had  the  aid  of  about  a 
dozen  Senators  and  members  of  Congress  in  getting  up  your  reply. 
With  all  these  helps  you  certainly  might  have  specified  some  error  in 
the  opinion,  if  it  be  erroneous.  But  you  content  yourself  with  merely 
railing  at  it.  I  think  I  may  say,  with  more  confidence  than  ever,  that 
"you  can  not  be  so  ignorant  of  the  fundamental  law  as  not  to  know 
that  our  exposition  of  it  was  perfectly  sound  and  correct." 

While  you  do  not  deny  its  truth,  you  think  you  annihilate  it  by 
the  assertion  that  it  is  extensively  disapproved.  Do  you  really  believe 
that  an  officer,  dealing  with  questions  of  law,  is  bound  to  be  popular 
rather  than  right  ?  Will  you  never  learn  that  t: statesmen"  and  " pa 
triots  "  of  your  school  have  notions  about  all  the  political  virtues 
which  a  sound  morality  holds  in  utter  detestation  ?  To  flatter  the 
passions  and  cajole  the  understanding  of  the  people  is  not  the  highest 
object  of  any  honest  man's  ambition.  Mr.  Jefferson  thought  he  ought 
to  "  do  them  as  much  good  as  possible  in  spite  of  their  teeth."  But  on 
your  theory,  to  be  "ever  strong  upon  the  stronger  side"  is  not  only 
good  fortune,  but  high  desert ;  while  it  is  mere  imbecility  to  offend 
the  powerful  by  letting  the  countenance  of  the  law  shine  upon  the 
weak  or  the  oppressed,  who  can  not  reward  you  with  office  or  money. 
If  your  theological  opinions  conform  to  your  ideas  of  political  duty, 
you  esteem  the  luck  of  Barabbas  as  more  meritorious  than  the  fidelity 
of  John,  or  the  devotion  of  all  the  Marys. 

No  doubt  there  was  then,  as  there  is  now,  a  set  of  "small  but 
ferocious  politicians,"  who  became  completely  infuriated  against  me 
because  I  did  not  falsify  the  law,  advise  the  President  to  violate  the 
Constitution,  and  thus  bring  on  an  immediate  dissolution  of  the 
Union.  But  you  can  hardly  expect  me  to  regret  that  I  did  not  escape 
their  censure.  They  were  men  who  had  been  taught  that  enmity  to 
the  Constitution  was  the  sum  of  all  public  and  private  virtue.  There 
certainly  is  not  an  uncorrupted  man  in  the  country  who  will  say  that 
I  was  to  blame  for  giving  the  law  faithfully  and  truly. 


POLITICAL  ESSAYS  AND  LETTERS.  265 

You  declare  that  "  contemporaneous  history  has  already  pro 
nounced  "  against  me,  and  you  quote  a  few  words  of  twaddle,  appar 
ently  from  the  writings  of  some  one  whose  name  you  are  ashamed  to 
mention.  You  call  this  a  judgment  upon  me  which  posterity  is  not 
likely  to  reverse.  Political  power  dishonestly  wielded  .always  has 
hacks  to  defend  its  excesses  by  maligning  its  opponents.  A  dozen 
books  of  that  character  have  been  printed  within  the  last  seven  years. 
These  productions  come  within  the  awkward  description  you  have 
given  of  your  own  ;  they  are  "not  history  or  biography,  nor  intended 
to  be  "  ;  they  are  places  of  deposit  for  worn-out  calumnies — mere  sew 
ers  into  which  the  filth  of  the  party  is  drained  off.  I  hope  I  am  tol 
erably  secure  from  the  praises  of  this  venal  tribe ;  and  their  abuse  is 
prima  facie  evidence  of  a  character  at  least  negatively  good.  It  is 
not  worth  while  for  you  or  me  to  trouble  ourselves  about  posterity, 
for  posterity  will  not  probably  take  much  account  of  us.  No  doubt 
you  did  all  in  your  power  to  subvert  the  free  institutions  of  our  Revo 
lutionary  fathers,  and  to  debauch  the  political  morals  of  the  country ; 
but  the  utmost  exertion  of  your  abilities  has  not  sufficed  to  raise  you 
above  the  common  file  of  partisans  who  have  engaged  in  the  same  evil 
work.  On  the  other  hand,  the  cause  of  liberty  regulated  by  law  has 
had  a  crowd  of  advocates  so  infinitely  superior  to  me  that  my  feeble 
efforts  can  not  be  expected  to  attract  the  notice  of  future  generations. 

You  make  no  attempt  to  justify  your  abuse  of  Mr.  Buchanan ; 
you  do  not  repeat  your  charge  against  Mr.  Toucey  of  scattering  the 
ships  of  the  navy  to  render  that  arm  powerless  ;  nor  do  you  now  pre 
tend  to  assert  that  Mr.  Thompson  was  guilty  of  robbing  the  Indian 
trust  funds.  But  you  offer  no  reparation,  nor  even  make  an  excuse, 
for  the  wanton  and  unprovoked  injury  which  you  tried  to  commit 
upon  the  character  of  the  living  and  the  memory  of  the  dead.  You 
sullenly  permit  judgment  to  be  rendered  against  you  by  nil  dicit.  I 
mention  this  only  to  say  that  it  very  seriously  affects  your  credibility 
upon  the  other  points.  Falsus  in  uno,  falsus  in  omnibus. 

You  pervert  my  words  and  my  meaning  when  you  say  that  I  repre 
sented  Mr.  Thompson  as  being  above  the  range  of  ordinary  mortals. 
I  merely  declared  that  his  mental  ability,  good  sense,  and  common 
honesty  placed  him  very  far  beyond  you,  who  had  assailed  him  with  a 
false  charge  of  felonious  robbery.  You  do  not  see  the  justice  of  this 
comparison,  and  you  think  if  I  had  not  been  a  mere  lawyer,  having 
"little  acquaintance  or  association  with  statesmen,"  I  might  have  en 
tertained  a  different  notion.  Although  I  consider  my  calling  to  be  as 
reputable  as  any  that  you  ever  followed  either  before  or  after  you  took 
up  the  trade  of  a  politician,  you  may  make  what  deduction  you  please 
on  that  account  from  the  value  of  my  judgment  ;  but  you  must  not 
interfere  with  my  undoubted  right  to  believe  (as  I  do  most  devoutly) 
that  it  would  take  a  great  many  Wilsons  to  make  one  Thompson. 


266  POLITICAL  ESSAYS  AND  LETTERS. 

It  was  not  to  be  expected  that  Governor  Floyd  would  escape  your 
maledictions.  No  public  man  ever  provoked  such  a  storm  of  popular 
wrath  as  he  did.  The  President,  who  had  trusted  him,  withdrew  his 
confidence,  drove  him  from  his  counsels,  and  ordered  him  to  be  in 
dicted  for  malversation  in  office.  His  colleagues  left  him  to  his  fate, 
and  there  was  nobody  in  all  this  land  to  take  his  part.  He  had  some 
qualities  which  commanded  the  respect  of  folks  like  you  as  long  as  he 
lived  and  moved  among  you.  But  absent,  unfriended,  defenseless, 
dead — fallen  in  a  lost  cause  and  buried  in  an  obscure  grave — he  was 
the  very  man  of  all  others,  in  or  out  of  the  world,  whom  your  magna 
nimity  would  prompt  you  to  attack.  But  why  did  you  not  charge 
him  with  misconduct  in  the  financial  management  of  his  department  ? 
That  might  have  provoked  a  comparison  between  him  and  others, 
whom  you  wished  to  court,  to  flatter,  and  whitewash.  Therefore, 
you  preferred  to  take  up  the  exploded  charge  of  sending  guns  and 
munitions  to  the  South  for  the  use  of  the  secessionists  in  the  war. 
Your  first  paper  had  nothing  in  it  on  this  subject  except  the  bald 
assertion,  and  I  was  content  with  a  naked  denial.  But  in  your  last 
you  come  back  with  a  more  extended  averment, .  and  produce  what 
you  seem  to  suppose  will  be  taken  as  evidence  by  at  least  some  of 
your  readers.  Let  us  look  at  it. 

A  committee  was  appointed  by  the  House  of  Representatives  in 
January,  1861,  to  ascertain  how  the  public  arms  distributed  during 
the  year  1860  had  been  disposed  of.  Mr.  Floyd  was  not  present  at 
the  investigation  ;  he  had  not  a  friend  on  the  committee  ;  it  was  "  or 
ganized  to  convict "  him  if  it  could.  It  reported  the  evidence,  but 
gave  no  judgment  criminating  him  with  the  offense  you  accuse  him 
of.  On  the  contrary,  the  opinion  was  expressed  by  the  chairman  that 
the  charges  were  founded  in  "  rumor,  speculation,  and  misapprehen 
sion."  But  you  take  up  the  reported  evidence  and  try  to  make  out  a 
case  which  the  committee  did  not  make  out,  by  carefully  suppressing 
all  the  principal  facts  and  misstating  the  others. 

Your  charge  of  fraudulently  sending  arms  to  the  South  can  not  be 
true  of  the  heavy  arms  made  at  Pittsburg  for  the  forts  in  Louisiana 
and  Texas,  because  they  were  not  sent  at  all.  Floyd  gave  an  order  to 
ship  them  on  the  20th  of  December,  1860,  but  it  was  revoked  by  the 
President  before  a  gun  was  started.  It  is,  of  course,  possible  that 
Floyd,  in  making  the  order,  acted  in  bad  faith  ;  but  there  is  no  proof 
of  that.  On  the  contrary,  Colonel  Maynadier,  an  honest  as  well  as  a 
sharp  man,  and  a  most  vigilant  officer,  who  knew  all  the  facts  of  the 
case  and  understood  Floyd's  attitude  with  regard  to  secession  and 
union  as  well  as  anybody  in  the  whole  country,  cheerfully  set  about 
the  business  of  carrying  out  the  order,  though  it  was  not  in  writing, 
and  testified  that  he  had  no  suspicion  of  any  improper  object  or  mo 
tive  in  it.  In  fact  and  in  truth,  Floyd  was  not,  in  sentiment  or  in 


POLITICAL  ESSAYS  AND  LETTERS.  267 

action,  a  secessionist  until  after  he  saw  that  the  breach  between  him 
self  and  the  President,  which  originated  in  other  matters,  was  irrepa 
rable.  Up  to  the  time  when  he  got  notice  that  he  must  resign,  he  was 
steadily  opposed  to  the  Southern  movement,  and  the  bitterest  enemies 
he  had  were  the  leading  men  of  that  section.  Colonel  Maynadier  says 
that  "  he  was  regarded  throughout  the  country  as  a  strong  advocate 
of  the  Union  and  opponent  of  secession  "  ;  and  he  adds,  as  a  confirma 
tion  of  this,  that  "  he  had  recently  published  over  his  own  signature 
in  a  Richmond  paper  a  letter  on  this  subject  which  gained  him  high 
credit  in  the  North  for  his  boldness  in  rebuking  the  pernicious  views 
of  many  in  his  own  State."  After  he  found  the  whole  Administration 
against  him,  he  was  driven  by  stress  of  necessity  into  the  ranks  of  the 
party  which  he  had  previously  opposed. 

The  great  and  important  fact  to  which  the  resolution  of  the  House 
directed  and  confined  the  attention  of  the  committee,  and  which  is 
made  perfectly  clear  by  the  evidence,  you  do  not  refer  to  at  all,  but 
keep  it  carefully  out  of  sight  from  beginning  to  end  of  your  statement. 
The  question  was  and  is,  Whether  the  Secretary  of  War  under  the 
Buchanan  Administration  did  at  any  time  subsequent  to  the  1st  of 
January,  1860,  treacherously  dispose  of  guns  and  munitions  for  the 
purpose  of  giving  to  the  South  the  advantage  in  the  war  which  the 
leaders  in  that  section  intended  to  make  against  the  Federal  Govern 
ment  ?  This  was  the  "rumor,  speculation,  and  misapprehension"  to 
which  the  chairman  of  the  committee  alluded ;  this  is  substantially 
what  the  partisan  newspapers  and  stump-orators  have  asserted  and  re 
asserted  over  and  over  again,  until  thousands  of  persons  in  every  part 
of  the  country  have  been  made  to  believe  it ;  this  is  what  you  meant 
by  your  first  article,  and  what  you  persist  in  and  reaffirm  by  your  last. 
Now  examine  the  facts.  There  was  a  law  almost  coeval  with  the  gov 
ernment  for  the  distribution  of  arms  among  the  different  States,  ac 
cording  to  their  representation  in  Congress,  for  the  use  of  their  militia. 
Under  this  law  the  Ordnance  Bureau,  without  any  special  order  from 
the  head  of  the  department,  gave  to  each  State  that  applied  for  it  her 
proper  quota  of  muskets  and  rifles  of  the  best  pattern  and  make  pro 
vided  for  the  regular  army.  During  the  year  1860  the  number  of 
muskets  so  distributed  was  exactly  8,423,  of  which  the  Southern  States 
received  2,091,  while  the  Northern  States  got  nearly  three  times  that 
number,  to  wit,  6,332.  Some  long-range  rifles  of  the  army  caliber 
were  distributed.  The  aggregate  number  amounted  to  1, 728,  and  they 
all  went  to  Northern  States  except  758,  about  half  enough  for  one 
regiment,  which  were  divided  between  Virginia,  Kentucky,  Tennessee, 
North  Carolina,  Mississippi,  and  Louisiana,  the  other  States  of  the 
South  receiving  none.  Why  did  you  conceal  these  facts  ?  You  knew 
them,  and  you  could  not  help  but  see  their  strict  relevancy  and  great 
importance.  Perhaps  you  did  not  know  that  the  suppressio  veri  is  as 


268  POLITICAL  ESSA  YS  AND  LETTERS. 

bad  as  the  suggestio  falsi,  and  thought  it  fair  to  make  out  a  criminal 
charge  against  a  dead  rebel  by  keeping  back  so  much  of  the  truth  as 
did  not  suit  your  purpose. 

The  fact  that  the  Southern  States  neglected  to  take  their  proper 
and  just  quota,  which  they  might  have  got  for  the  asking,  satisfied  the 
committee,  and  no  doubt  fully  convinced  you,  that  there  could  have 
been  no  fraudulent  combination  in  1860  between  them  and  the  War 
Department  to  rob  the  Government  of  its  arms  for  their  benefit.  That 
concluded  the  whole  case,  since  it  was  impossible  for  a  sane  man  to 
believe  that  such  a  plot  could  have  been  formed  and  acted  upon  at  a 
previous  time,  and  yet  had  no  existence  in  the  year  immediately  pre 
ceding  the  war.  Nevertheless,  the  committee  went  back,  and  it  was 
proved  that  in  1859,  before  any  war  was  apprehended — before  the  elec 
tion  of  Lincoln  was  dreamed  of — before  the  division  of  the  Democracy, 
which  made  his  election  possible  with  a  million  majority  against  him 
— Floyd  ordered  a  transfer  of  115,000  muskets  from  Northern  to 
Southern  arsenals.  This  you  parade  with  a  great  flourish  as  evidence 
of  a  most  wicked  robbery.  But  here  we  find  you  again  at  the  disin 
genuous  business  (is  not  that  a  soft  phrase  ?)  of  keeping  back  a  truth 
which  would  have  spoiled  the  face  of  your  story.  These  arms  were 
all  worthless  and  unserviceable.  We  had  500,000  of  them  ;  they  cum 
bered  the  Northern  arsenals,  and  could  not  be  used  ;  a  law  had  been 
passed  to  authorize  the  sale  of  them  ;  they  were  offered  for  years  at 
two  dollars  and  fifty  cents  apiece,  about  one  tenth  the  price  of  a  good 
gun,  and  they  could  not  be  got  off.  Twice  a  considerable  number 
were  sold,  but  the  purchasers  upon  further  examination  refused  to 
take  them.  Of  these  500,000  condemned  muskets,  the  Secretary  of 
War,  in  1859,  ordered  115,000  to  be  sent  to  the  South,  doubtless  for 
mere  convenience  of  storage.  To  "weapon  the  rebellion"  with  arms 
like  these  would  have  insured  its  destruction  the  instant  its  forces 
came  into  the  presence  of  troops  having  the  improved  modern  gun 
in  their  hands.  Floyd  could  not  have  done  a  greater  injury  to  the 
Southern  cause  than  this  would  have  been.  Nor  is  it  possible  to  be 
lieve  that  Southern  leaders  would  have  conspired  with  him  to  purloin 
these  useless  arms  in  1859,  and  then,  in  1860,  decline  to  take  the  share 
that  legally  belonged  to  them  of  the  best  muskets  and  rifles  ever  in 
vented.  All  these  facts  appear  in  the  evidence  reported  by  the  com 
mittee,  from  which  you  pretend  to  be  making  fair  and  candid  citations, 
and  you  say  not  a  word  about  them. 

If  you  were  "a  mere  lawyer,"  or  any  lawyer  at  all,  and  would  go 
before  a  judicial  tribunal  mutilating  the  truth  after  this  fashion,  you 
would  immediately  be  expelled  from  the  profession,  and  no  judge 
would  ever  permit  you  to  open  your  mouth  in  a  court  of  justice 
again.  If  you  would  appear  as  a  witness,  and  in  that  character  tes 
tify  to  the  contents  of  a  written  document  in  the  way  you  have  set 


POLITICAL  ESSA  YS  AND  LETTERS.  269 

out  this  report  to  your  readers,  it  might  be  followed  by  very  disa 
greeable  consequences,  which  I  will  not  shock  your  polite  ears  by  men 
tioning. 

Mr.  Cobb,  while  Secretary  of  the  Treasury,  performed  his  duties 
with  singular  purity,  uprightness,  and  ability.  No  enemy  has  ever 
ventured  to  point  out  a  single  public  act  done  in  that  department  by 
him  of  which  the  wisdom,  the  lawfulness,  or  the  honesty  could  be  even 
doubted.  The  disjointed  and  loose  accusation  of  your  first  paper  im 
plied  that  by  some  official  delinquency  he  had  purposely  disorganized 
the  fiscal  machinery  of  the  Government,  or  otherwise  perpetrated  some 
malicious  mischief  on  the  public  credit.  Now,  however,  you  are  re 
duced  to  the  old  and  never-failing  resort  of  "  treasonable  utterances  "  ; 
something  that  he  said  in  private  conversation  had  the  effect  of  injur 
ing  the  credit  of  the  United  States.  "What  was  it  ?  It  is  well  known 
that  the  prices  of  all  securities,  public  and  private,  began  to  go  down 
immediately  upon  the  presidential  election  of  1860,  and  continued 
going  down  for  years  afterward.  Is  this  attributable  to  the  treasonable 
utterances  of  Thomas,  and  Dix,  and  Chase  ?  But  what  is  the  use  of 
pursuing  such  a  subject  ?  Mr.  Cobb  was  dead,  and  you  felt  a  sort  of 
necessity  for  doing  some  despite  upon  his  grave.  This  feeble  absurd 
ity  was  all  you  could  do. 

I  considered  myself  bound  to  defend  Mr.  Stanton  against  the  praise 
which  described  his  character  as  infamous.  Down  to  the  time  of  his 
apostasy  we  were  close  and  intimate  friends,  and  I  thought  I  knew 
him  as  well  as  one  man  could  be  known  to  another.  I  do  not  claim 
that  he  owed  me  anything  ;  for  I  made  no  sacrifices  of  myself  or  any 
body  else  to  serve  him.  I  advanced  him  in  his  profession,  and  thereby 
improved  his  fortune,  but  he  got  nothing  in  that  way  for  which  he 
did  not  render  equivalent  services.  I  strove  long,  and  at  last  success 
fully,  to  remove  the  prejudices  of  Mr.  Buchanan  and  others  against 
him,  because  I  thought  them  unjust,  and  because  it  was  inconvenient 
for  me  that  the  President  should  not  trust  a  man  in  whom  I  had  un 
limited  confidence.  I  recommended  him  pressingly  for  Postmaster- 
General  upon  the  death  of  Mr.  Brown,  solely  for  the  reason  that  the 
exigencies  of  the  public  service  in  that  department  required  a  man  of 
his  great  ability  and  industry.  I  caused  him  to  be  appointed  Attorney- 
General,  because  I  knew  (or  thought  I  knew)  that  he  and  I  were  in 
perfect  accord  on  all  questions,  whether  of  law  or  policy,  which  he 
might  have  to  deal  with,  and  because  I  was  sure  that  he  would  handle 
them  not  only  with  fidelity  but  with  consummate  skill.  But,  though 
he  was  not  in  my  debt,  the  apparent  warmth  of  his  nature  impelled  him 
to  express  his  gratitude  in  most  exaggerated  language.  After  he  took 
office  under  the  Lincoln  Administration  our  paths  diverged  so  widely 
that  I  did  not  often  see  him.  When  I  did,  he  sometimes  overwhelmed 
me,  as  before,  with  hyperbolical  demonstrations  of  thankfulness  and 


270  POLITICAL  ESSAYS  AND  LETTERS. 

friendship.  If  his  feelings  ever  changed,  he  "  died  and  made  no  sign  " 
that  was  visible  to  me. 

Here  let  me  record  my  solemn  declaration  that  I  never  saw  any 
thing  dishonorable  in  his  conduct  while  I  was  associated  with  him . 
He  never  disappointed  me  while  he  was  employed  under  me,  or  while 
we  were  colleagues  in  office  ;  and  he  never  failed  me  in  anything  which 
I  had  a  right  to  expect  at  his  hands.  His  enemies  spoke  evil  of  him, 
but  that  is  "the  rough  brake  that  virtue  must  go  through,"  and  I 
allowed  no  tale-bearer  to  shake  my  faith.  My  own  personal  knowledge 
does  not  enable  me  to  accuse  him  of  any  mean  or  disgraceful  act.  How 
far  you  have  succeeded,  or  may  hereafter  be  able  to  succeed,  in  prov 
ing  him  a  treacherous  hypocrite,  is  a  question  to  be  considered.  But 
I  am  not  one  of  your  witnesses  ;  my  testimony,  as  far  as  it  goes,  is  di 
rectly  against  you. 

Under  these  circumstances  it  was  impossible  for  me  to  be  quite 
silent  when  I  saw  your  publication  in  the  "Atlantic,"  or  to  confine 
myself  to  a  mere  vindication  of  the  other  parties  assaulted.  It  was 
plain  to  me  that  you  had  "wholly  misunderstood  the  character  of 
Mr.  Stanton,  and  grossly  injured  him  by  what  you  supposed  to  be  a 
panegyric."  Your  description  of  him,  if  accepted  as  true,  would  com 
pel  the  belief  that  his  whole  political  life  was  one  long  imposture  ; 
that,  as  a  trusted  member  of  the  Buchanan  Administration,  he  acted 
alternately  the  incompatible  parts  of  a  spy  and  a  bully ;  that,  while  he 
was  the  chief  law-officer  of  the  Government,  he  was  engaged  in  the 
foulest  conspiracy  that  ever  was  hatched  against  the  life,  liberty,  and 
honor  of  a  colleague  for  whom  he  was  at  that  very  time  professing  un 
bounded  friendship ;  and  that,  as  Secretary  of  War,  he  did  loyally 
and  feloniously  embezzle  public  money  to  the  amount  of  two  hundred 
and  fifty  thousand  dollars  at  one  time.  It  is  true  that  you  were 
actuated  by  no  malicious  intent.  You  meant  to  do  him  honor.  Ac 
cording  to  your  moral  apprehensions,  all  the  evil  you  ascribe  to  him 
was  good.  When  you  wove  for  him  this  disgusting  "  wreath  of  ul 
cers  gone  to  seed,"  you  thought  you  were  decorating  his  coffin  with  a 
chaplet  of  the  choicest  flowers.  You  painted  a  monster  of  depravity, 
and  you  expected  the  American  people  to  worship  it  with  all  the  fer 
vor  of  savages  when  they  fall  down  to  adore  the  image  of  some  hide 
ous  demon.  No  doubt  the  votive  offering  of  your  affection  took  this 
anomalous  form  because  you  believed  that  duplicity  and  crime  em 
ployed  against  Democrats  would  give  him  the  highest  claim  he  could 
have  on  the  admiration  of  the  abolitionists,  and  because  it  did  greatly 
increase  your  own  esteem  and  regard  for  him.  But  my  interest  in 
his  reputation  required  that  he  should  be  properly  appreciated  by 
that  "honest  portion  of  the  people  who  still  adhere  to  the  moral  creed 
of  their  fathers. 

I  do  not  assert  that  your  last  paper  proves  nothing.     I  will  give 


POLITICAL  ESSAYS  AND  LETTERS.  271 

you  the  full  benefit  of  every  fact  which  you  have  established.  So  far 
as  you  have  shown  Mr.  Stanton  to  be  guilty  of  the  baseness  you  im 
pute  to  him,  I  will  make  no  contest  about  it.  But  I  will  not  yield 
one  inch  to  any  allegation  of  yours  unsupported  by  evidence.  I  will 
try  to  save  out  of  your  hands  as  much  of  his  character  as  you  have  not 
already  destroyed  by  credible  evidence.  My  effort  was  to  take  him 
down  from  the  pillory  to  which  you  have  nailed  him  by  the  ears  as  "a 
fixed  figure  for  Scorn  to  point  its  finger  at."  You  have  done  your 
strongest  to  oppose  my  rescue  of  him,  and  any  partial  success  which 
may  have  rewarded  your  struggle  must  be  a  great  comfort,  of  which  I 
can  not  justly  deprive  you.  We  will  examine  your  evidence,  and  see 
upon  what  points  you  have  made  o'ut  your  case,  and  wherein  you  have 
come  short  of  your  aim. 

I.  You  asserted  that  Mr.  Stanton  had  been  from  his  earliest  youth 
an  abolitionist  in  his  secret  heart ;  that  to  leading  men  of  that  party 
he  declared  himself  in  entire  agreement  with  them,  and  hoped  for  the 
time  to  come  when  he  could  aid  them.  In  other  words,  he  gave  in  his 
perfect  adhesion  to  them,  concurred  in  their  views  of  public  morality, 
and  was  willing  to  promote  their  designs  against  the  Federal  and  State 
governments  whenever  he  could  make  himself  most  efficient  to  that 
end.  At  the  same  time  he  was  in  the  Democratic  party  by  virtue  of 
his  declared  faith  in  exactly  the  opposite  sentiments.  To  us  he  made 
himself  appear  a  Democrat  of  the  most  ultra  class.  I  do  not  say  that 
he  was  an  active  propagandist ;  but  all  Democrats  with  whom  he  spoke 
were  impressed  by  the  seeming  strength  of  his  attachment  to  those 
great  principles,  by  the  application  of  which  they  hoped  to  save  the 
Union  from  dissolution,  the  country  from  civil  war,  and  the  liberties 
of  the  people  from  the  destruction  with  which  your  ascendency  threat 
ened  them.  We  took  him  on  his  word,  believed  him  thoroughly,  and 
gave  him  honor,  office,  and  high  trusts.  Now,  a  man  may  be  an 
honest  Democrat  or  a  sincere  abolitionist,  but  he  can  not  honestly 
and  sincerely  be  both  at  the  same  time.  Between  those  two  parties 
the  hostility  was  deadly.  Each  recognized  the  other  as  a  mortal  foe. 
They  were  as  far  asunder  as  the  poles  on  every  point  of  principle  and 
policy.  They  differed  not  merely  about  rules  for  the  interpretation 
of  the  organic  law,  but  opposed  each  other  on  the  broad  question 
whether  that  law  was  entitled  to  any  obedience  at  all.  One  of  them 
respected  and  reverenced  the  Constitution  as  the  best  government  the 
world  ever  saw,  while  the  other  denounced  it  as  an  agreement  with 
death  and  a  covenant  with  hell,  which  it  was  meritorious  even  for  its 
sworn  officers  to  violate.  If  we  loved  any  portion  of  it  more  than  an 
other,  it  was  that  part  which  guarded  the  individual  rights  of  the  people 
by  habeas  corpus,  jury  trial,  and  other  great  judicial  institutions,  which 
our  ancestors  on  both  sides  of  the  Atlantic  had  shed  so  much  of  their 
blood  to  establish ;  and  it  was  precisely  those  provisions  which  had 


272  POLITICAL  ESSA  YS  AND  LETTERS. 

your  bitterest  enmity,  and  which  you  made  the  first  use  of  your  power 
to  abolish,  trample  down,  and  destroy.  Mr.  Stanton  could  not  have 
been  truly  on  more  than  one  side  of  such  a  controversy ;  he  could  not 
serve  God  and  Mammon  both ;  he  could  not  be  for  the  Constitution 
and  against  it  too ;  he  could  not  at  once  believe  and  disbelieve  in 
the  sanctity  of  an  oath  to  support  it.  He  professed  most  fervently 
to  be  heart  and  soul  with  us.  If  he  also  professed  to  be  with  you, 
he  was  a  wretched  hypocrite.  If  he  kept  up  this  fraudulent  deceit 
for  thirty  years,  and  thereby  got  the  highest  places  in  the  gift  of 
both  parties,  he  was  "  the  most  marvelous  impostor  that  ever  lived  or 
died." 

When  your  first  article  appeared,  I  did  not  believe  that  you  had 
any  ground  for  this  shocking  imputation  upon  his  character.  I  was 
compelled  to  disbelieve  and  contradict  it,  for  reasons  which  were  then 
given  and  need  not  now  be  repeated.  But  I  said  the  testimony  of  the 
Chief -Justice  would  silence  my  denial.  The  Chief-Justice  has  spoken 
out  and  sustained  your  assertion.  You  do  prove  by  him  a  declaration 
from  the  lips  of  Mr.  Stanton,  made  nearly  thirty  years  ago,  from 
which  the  inference  is  a  fair  one  that  he  was  in  the  Democratic  party 
with  intent  "to  betray  the  Constitution  and  its  friends  into  the 
cruel  clutches  of  their  enemies "  whenever  he  could  find  an  oppor 
tunity. 

But  you  are  not  satisfied  with  this.  To  make  the  brand  inefface 
able,  you  show  that  several  years  after  his  declaration  to  Mr.  Chase,  he, 
being  an  avowed  advocate  and  champion  of  Democratic  principles,  was 
either  appointed  by  his  political  brethren,  or  else  volunteered,  to  an 
swer  an  abolition  lecture  delivered  at  Steubenville  by  a  man  named 
Weld.  He  disappointed  all  parties,  including  the  lecturer  himself,  by 
declining  to  come  forward,  though  very  pointedly  called  for.  He 
made  no  excuse  at  the  time  for  deserting  the  cause  he  had  under 
taken,  but  afterward  he  slipped  round  secretly  and  alone  to  the  pri 
vate  room  of  the  lecturer  and  gave  himself  in  as  a  convert.  "I 
meant,"  said  he,  "to  fight  you,  but  my  guns  are  spiked,  and  I  came 
to  say  that  I  now  see  with  you,"  etc.  It  never  struck  Mr.  Weld  that 
there  was  anything  sneaking  or  shabby  about  this  transaction.  With 
the  obliquity  of  vision  peculiar  to  his  political  sect,  he  saw  nothing 
but  "  hearty  frankness,  independence,  moral  insight,  and  keen  mental 
force  "  in  the  conduct  of  a  man  who  privately  denounced  the  opinions 
and  principles  which  he  publicly  supported ;  and  twenty-five  years 
afterward'  Mr.  Weld  piously  thanks  God  on  paper  for  such  an  artful 
dodger  to  serve  as  a  leader  of  his  party. 

The  next  place  you  find  him  after  the  Steubenville  affair  is  in  the 
van  of  the  Ohio  Democracy.  They,  too,  believed  in  the  "hearty 
frankness  and  independence"  of  the  declaration  he  made  to  them. 
They  showed  their  faith  by  their  works ;  the  Legislature,  by  a  strict 


POLITICAL  ESSAYS  AND  LETTERS.  273 

party  vote,  elected  him  Law  Reporter,  an  office  which  he  sought  eagerly, 
and  received  with  many  thanks. 

In  all  the  conflicts  of  the  Buchanan  Ad  ministration  with  the  aboli 
tionists  and  their  allies,  he  was  an  open-mouthed  opponent  of  the 
latter.  He  was  always  sound  on  the  Kansas  question,  and  faithful 
among  the  faithless  on  the  Lecompton  Constitution.  So  far  as  we, 
his  Democratic  associates,  were  permitted  to  know  him,  no  man  de 
tested  more  than  he  did  the  knavish  trick  of  the  abolitionists  in  pre 
venting  a  vote  on  slavery,  by  which  it  would  have  been  expelled  from 
Kansas,  and  the  whole  trouble  settled  in  the  way  they  pretended  to 
wish.  He  was  out  and  out  for  Breckinridge  in  1860,  and  regarded  the 
salvation  of  the  country  as  hanging  on  the  forlorn  hope  of  his  election. 
To  Mr.  Buchanan  himself,  and  to  the  members  of  his  Cabinet,  he 
paid  the  most  assiduous  court,  was  always  ready  for  an  occasion  to 
serve  them,  and  showed  his  devotion  in  ways  which  sometimes  went 
rather  too  close  to  the  verge  of  obsequiousness. 

While  we  were  looking  at  this  side  of  his  character,  and  supposing 
it  had  no  other,  he  was,  according  to  your  understanding  of  his  his 
tory,  in  "entire  agreement"  with  the  deadly  enemies  of  every  prin 
ciple  we  believed  in. 

The  mere  fact  that  he  paid  visits  to  Dr.  Bailey  is  nothing.  It  is 
nothing  that  he  there  met  abolition  people.  All  that  might  happen, 
and  his  fidelity  to  the  Constitution  would  moult  no  feather.  But  you 
mention  it  as  a  remarkable  circumstance,  and  it  was  remarkable,  be 
cause  abolitionists  exclusively  were  in  the  habit  of  assembling  there  to 
talk  over  their  plans,  to  concoct  their  slanders  against  the  Adminis 
tration,  and  to  lay  their  plots  for  the  overthrow  of  the  Government 
and  laws.  It  was  a  place  where  men  congregated  for  political,  not 
merely  for  social  purposes,  and  Mr.  Stanton  knew  he  would  be  de  trop 
unless  he  was  one  of  them.  He  accordingly  made  himself  not  only 
acceptable,  but  interesting,  by  telling  them  that  he  was  of  Quaker 
blood,  and  got  his  abolitionism  by  inheritance  ;  his  grandfather  liber 
ated  his  slaves — he  did — and  purged  the  family  of  that  sin  ;  and  Ben 
jamin  Lunday  took  him  on  his  knee  when  he  was  a  little  boy  and 
taught  him  the  political  doctrine  which  he  had  never  forgotten,  but 
which  he  had  opposed  by  every  open  act  of  his  life.  He  was  probably 
fresh  from  one  of  these  symposia  when  he  went  into  court  in  the 
Sickles  case,  and  loudly  bragged  that  he  was  the  son  of  slave-holding 
parents  ;  his  father  was  a  North  Carolinian,  and  his  mother  a  Virgin 
ian.  You  may  see  that  part  of  his  speech  on  page  51  of  the  printed 
trial.  It  is  hard  to  run  with  the  hare  and  hunt  with  the  hounds,  but 
Stanton  seems  to  have  mastered  the  difficulty. 

Mr.  Sumner's  testimony  to  the  early  and  thorough-going  aboli 
tionism  of  Mr.  Stanton  is  entitled  to  great  weight,  because  it  is  coupled 
with  an  act  which  attests  its  entire  sincerity.  It  is  a  part  of  his  cer- 

18 


274  POLITICAL  ESSAYS  AND  LETTERS. 

tificate  that  when  Mr.  Stanton's  nomination  as  Secretary  of  War  was 
sent  to  the  Senate,  he  (Sumner)  immediately  rose  to  urge  the  confir 
mation,  stated  his  acquaintance  with  the  nominee,  and  said,  emphat 
ically,  "Within  my  knowledge,  he  is  one  of  us."  Mr.  Sumner  cer 
tainly  would  not  have  made  such  a  declaration  at  such  a  time,  and 
for  such  a  purpose,  unless  he  had  the  clearest  conviction,  based  upon 
personal  knowledge,  that  Mr.  Stanton  was  an  abolitionist  of  the  most 
virulent  type,  prepared  to  tread  the  Constitution  and  the  statute-book 
under  his  feet,  and  ready  to  go  all  lengths  for  the  subversion  of  liberty 
and  justice. 

There  is  another  fact  corroborating  your  view,  which  you  have  not 
mentioned,  but  of  which  you  are  fairly  entitled  to  the  benefit.  When 
Mr.  Stanton  went  into  the  War  Department,  he  immediately  began 
to  act  with  reckless  disregard  of  his  sworn  duty.  He  surrounded  him 
self  with  the  most  loathsome  miscreants,  and  used  them  for  the  foulest 
purposes.  Law,  justice,  and  humanity  were  utterly  outraged.  Those 
who  knew  him  as  I  did,  and  had  heard  him  curse  the  perpetrators  of 
such  crimes  only  a  month  or  two  before,  exercised  the  charity  which 
believeth  all  things,  and  concluded  that  he  was  moved  by  some  head 
long  impulse  which  had  suddenly  revolutionized  all  his  thoughts, 
feelings,  and  principles  of  action.  But  your  proofs  show  that  in  the 
kindness  of  our  construction  we  did  not  give  heed  enough  to  the  max 
im,  Nemo  repent e  fuit  turpissimus.  Such  a  depth  could  not  be 
reached  by  a  single  plunge.  The  integrity  of  his  moral  nature  must 
have  previously  undergone  that  gradual  process  of  decomposition  which 
could  result  only  from  long  and  sympathetic  association  with  the 
enemies  of  the  Constitution. 

On  the  whole,  it  must  be  admitted  that  you  have  made  out  this 
part  of  your  case.  With  Democrats  he  was  a  Democrat,  enjoying  their 
confidence  and  taking  their  favors,  while  he  caused  it  to  be  well  un 
derstood  among  "men  of  your  school  in  morals  and  politics"  that  his 
devotion  to  the  democracy  was  entirely  simulated.  It  is  now  also 
clear,  beyond  doubt,  that  to  Southern  men  he  avowed  himself  a  full- 
blooded  secessionist.  The  testimony  of  Governor  Brown  to  that  effect 
is  as  good  as  any  that  you  have  produced  to  prove  him  an  abolitionist, 
and  you  have  made  the  fact  so  probable  in  itself  that  very  slight  proof 
would  be  sufficient  to  establish  it. 

Is  not  my  conclusion  a  fair  one  from  the  premises  that  this  is  the 
most  "  marvelous  "  imposture  upon  record  ?  Does  the  history  of  the 
world  hold  on  all  its  pages  of  wonders  another  case  in  which  a  man 
has  raised  himself  to  the  highest  public  employments,  under  two  dif 
ferent  parties  of  diametrically  opposite  and  hostile  principles,  by 
making  simultaneous  professions  of  fidelity  to  both  of  them  ?  Do  not 
mention  Sunderland,  for  his  hypocrisy  gained  him  nothing  ;  nor  Tal 
leyrand,  for  he  was  merely  a  trimmer  ;  nor  Benedict  Arnold,  for  he 


POLITICAL  ESSA  YS  AND  LETTERS.  275 

acted  his  double  part  only  during  a  few  months,  and  closed  it  with 
ignominious  failure.  To  find  a  parallel,  you  must  go  to  another  scene 
of  action,  and  a  far  lower  line  of  life.  Jonathan  Wild  for  twenty 
years  imposed  himself  on  the  London  police  as  an  honest  man  and  a 
most  zealous  friend  of  justice,  pretended  to  assist  the  officers  in  their 
business,  and  shared  richly  in  their  rewards  ;  but  during  all  that  time 
he  was  the  adviser,  the  "guide,  philosopher,  and  friend"  of  the  prin 
cipal  thieves  in  the  city,  and  to  them  he  constantly  betrayed  the 
measures  taken  by  the  public  authorities  for  the  preservation  of  order 
and  law. 

II.  We  are  directly  at  issue  upon  the  question  whether  or  not  Mr. 
Stanton  advised  President  Buchanan,  before  his  appointment  as  At 
torney-General,  that  war  might  be  legally  made  against  the  States, 
and  the  people  thereof,  in  which  ordinances  of  secession  had  been 
passed,  by  way  of  coercing  them  to  remain  in  the  Union.  You  say 
he  was  sent  for  by  the  President  and  gave  him  that  advice,  accompa 
nied  by  an  argument  in  writing,  which  was  so  convincing  that  it  was 
inserted  in  the  first  draft  of  the  message,  but  afterward  stricken  out. 
No  such  paper  being  in  existence,  and  Mr.  Buchanan  as  well  as  Mr. 
Stanton  being  dead,  your  allegation  is  easily  made  ;  if  it  be  true,  it  is 
hard  to  prove,  and  though  false,  it  is  harder  still  to  disprove.  The 
evidence  you  produce  is  Mr.  Dawes's  statement  that  Mr.  Stanton  told 
him  so.  I  say  nothing  about  the  danger  of  relying  on  the  accuracy 
of  a  conversation,  reproduced  from  mere  recollection,  after  so  long  a 
time  ;  but  I  answer  that  it  is  not  true  for  the  following  reasons  : 

1.  Mr.  Buchanan  made  it  a  rule  never  to  seek  advice  from  out 
siders  on  legal  questions.    When  he  was  in  doubt,  he  took  the  opinions 
of  those  who  were  officially  responsible  for  their  correctness.     He  had 
no  kitchen  cabinet. 

2.  If  he  had  made  this  an  exceptional  case,  and  taken  Mr.  Stanton 
into  his  counsels  by  the  back  stairs,  and  if  Mr.  Stanton  had  furnished 
him  with  a  paper  which  produced  conviction  on  his  mind  that  all  his 
constitutional  advisers  were  wrong,  he  would  most  certainly  have 
shown  it  to  them,  or  told  them  of  it. 

3.  Mr.  Stanton  was  a  lawyer  of  undoubted  ability,  and  the  absurd 
opinion  which  you  attribute  to  him  could  not  have  found  a  lodgment 
in  his  mind,  even  for  one  moment. 

4.  If  he  had  really  entertained  such  a  notion,  and  desired  in  good 
faith  to  impress  it  upon  the  Administration,  he  would  not  (I  think  he 
could  not)  have  concealed  it  from  me.     It  would  have  been  contrary 
to  the  whole  tenor  of  his  behavior  in  those  days,  and,  what  is  more,  very 
much  against  his  own  interests. 

5.  He  did  express  views  exactly  the  opposite  of  those  which  you 
say  he  urged  upon  the  President.     He  indorsed  the  opinion  which  I 
gave  on  the  20th  of  November,  1860,  in  extravagant  terms  of  appro- 


276  POLITICAL  ESSAYS  AND  LETTERS. 

bation,  adhered  steadily  to  the  doctrines  of  the  annual  message,  and 
when  required  officially  to  pronounce  upon  the  special  message  of 
January,  1861,  he  gave  his  concurrence  heartily,  strongly,  and  un 
equivocally.  In  all  the  discussions  upon  the  subject,  he  did  not  once 
intimate  that  there  was,  or  ever  had  been,  the  slightest  difference  be 
tween  him  and  the  other  members  of  the  Administration.  Do  you 
mean  to  say  that  this  was  mere  sham  ?  Was  he  so  utterly  devoid  of 
all  sincerity,  honor,  and  truth,  that  he  gave  the  whole  weight  of  his 
influence  and  power  to  the  support  of  a  doctrine  which  he  believed  to 
be  not  only  false,  but  pernicious  ?  If  he  was  such  a  knave  as  that, 
then  tell  me  what  reliance  can  be  placed  on  any  statement  he  may 
have  made  to  Mr.  Dawes. 

III.  Did  he  betray  the  Buchanan  Administration  while  he  was  a 
member  of  it  ?  Was  he  false  to  the  principles  that  he  pretended  to 
believe  in  ?  Was  he  treacherously  engaged  with  you  in  trying  to 
defeat  the  measures  he  was  trusted  to  support  ?  Did  he  aid,  and 
strengthen,  and  assist  you  in  your  efforts  to  blacken  the  reputation  of 
his  associates  and  friends  ?  Before  these  questions  are  answered,  let 
us  look  for  a  moment  at  the  situation  we  were  in. 

Mr.  Buchanan  was  compassed  round  on  all  sides  with  more  diffi 
culties  and  dangers  than  any  other  public  man  in  this  country  ever 
encountered.  The  party  which  elected  him  was  perfectly  routed  ;  its 
force  wasted  by  division,  its  heart  broken  by  defeat.  Every  Northern 
State  was  in  the  hands  of  enemies,  flushed  with  the  insolence  of  newly 
acquired  power ;  and  after  his  official  condemnation  of  secession,  the 
South  fell  away  from  his  side  in  a  body.  With  bitter,  remorseless, 
unrelenting  foes  in  front,  and  flank,  and  rear,  he  was  literally  unsup 
ported  by  any  political  organization  capable  of  making  itself  felt. 
But  he  was  "shielded,  and  helmed,  and  weaponed  with  the  truth," 
and  he  went  right  onward  in  the  path  made  sacred  by  the  footsteps  of 
his  great  predecessors.  He  declared  the  secession  ordinances  mere 
nullities  ;  the  Union  was  not  for  a  day,  but  for  all  time  ;  a  State 
could  not  interpose  itself  between  the  Federal  Government  and  indi 
vidual  citizens  who  violated  Federal  laws  ;  the  coercive  power  did  not 
apply  to  a  State,  and  could  not  be  used  for  purposes  of  indiscriminate 
carnage  in  which  the  innocent  and  the  guilty  would  be  mingled  to 
gether  ;  but  the  laws  must  be  executed,  and  the  just  rights  of  the 
Federal  Government  maintained  in  every  part  of  the  country  against 
all  opposers.  The  whole  theory  of  the  Constitution,  as  expounded  by 
the  men  that  made  it,  and  all  their  successors  down  to  that  time,  jus 
tice,  humanity,  patriotism,  honor,  and  conscience,  required  him  to 
announce  and  maintain  these  principles.  They  were  not  only  true, 
but  were  either  expressly  or  impliedly  admitted  to  be  true  by  all  ex 
cept  the  open  avowed  enemies  of  the  Union.  The  secessionists,  of 
course,  had  trained  themselves  to  a  different  way  of  thinking,  and 


POLITICAL  ESSA  YS  AND  LETTERS.  277 

they  immediately  assumed  an  attitude  of  pronounced  hostility  to  the 
Administration.  The  foremost  of  the  abolition  orators  and  the  lead 
ing  newspaper  organ  of  the  so-called  Eepublican  party  took  the  high 
ground  that  the  Southern  States  had  a  right  to  break  up  the  Union 
if  they  pleased,  and  could  not  justly  be  opposed.  But  though  they 
61  drew  much  people  after  them,"  and  gave  great  encouragement  to 
the  insurrectionary  movement,  no  man  who  was  at  once  honest,  intel 
ligent,  and  true  to  the  country,  failed  to  see  the  wisdom  of  the  Presi 
dent's  views.  The  President  elect  indorsed  them  fully  on  his  way  to 
the  capital,  as  he  'did  afterward  by  his  official  action.  From  all 
quarters  addresses  and  petitions  came  up,  which  showed  the  popular 
appreciation  of  them.  Even  the  Massachusetts  Legislature,  without 
one  dissenting  voice  in  its  more  numerous  branch,  and  by  an  over 
whelming  majority  in  the  other  house,  passed  a  solemn  resolution 
approving  them  in  the  strongest  language,  and  offering  to  aid  in 
carrying  them  out.  But  everything  depended  on  Congress  ;  and  what 
did  Congress  do  ?  Both  Houses  were  completely  in  the  hands  of  shal 
low  partisans,  who  were  either  too  stupid  to  understand  their  duty,  or 
too  dishonest  to  perform  it.  The  men  of  most  ability  and  integrity 
whom  Republican  constituents  had  sent  there — such  men,  for  instance, 
as  Charles  Francis  Adams — were  heard  but  not  heeded.  The  Presi 
dent,  thoroughly  informed  on  the  whole  subject,  communicated  all 
the  facts  in  a  special  message,  told  Congress  that  the  powers  confided 
to  him  were  wholly  inadequate  to  the  occasion,  demonstrated  the  ab 
solute  necessity  of  further  legislation,  and  implored  them  not  to  post 
pone  it,  for  the  danger,  imminent  then,  was  increasing  with  every 
moment  of  delay.  To  all  this  they  were  as  deaf  as  adders.  They 
could  be  reached  by  no  appeal  to  their  hearts  or  consciences.  They 
neither  adopted  the  executive  recommendation,  nor  gave  a  reason  for 
refusing.  If  any  measure,  having  the  least  tendency  either  to  restore 
peace  or  prepare  for  war,  got  so  far  as  to  be  proposed,  it  was  uni 
formly  referred  to  a  committee,  where  it  was  sure  to  be  quietly  stran 
gled.  The  issues  of  life  and  death  to  the  nation  hung  upon  their 
action,  and  they  would  not  lift  a  finger  to  save  it.  No  legislative 
body,  since  the  beginning  of  the  world,  ever  behaved  in  a  great  crisis 
with  such  scandalous  disregard  of  its  duty. 

But  if  there  were  no  statesmen  among  the  managers  of  that  Con 
gress,  there  were  plenty  of  demagogues ;  if  they  were  indifferent  to 
the  fate  of  the  nation,  they  were  intensely  alive  to  the  interests  of 
their  faction ;  if  the  regular  committees  slept  supinely  on  the  great 
public  questions  submitted  to  them,  the  secret  committee,  spawned  by 
a  caucus,  went  prowling  about  with  activity  as  incessant  as  it  was 
stealthy  and  malignant.  You  could  not  gainsay  the  views  which  the 
Administration  took  of  their  own  duty  or  yours,  nor  deny  the  wisdom 
of  the  recommendations  they  made ;  but  you  could,  and  did,  answer 


276  POLITICAL  ESSAYS  AND  LETTERS. 

bation,  adhered  steadily  to  the  doctrines  of  the  annual  message,  and 
when  required  officially  to  pronounce  upon  the  special  message  of 
January,  1861,  he  gave  his  concurrence  heartily,  strongly,  and  un 
equivocally.  In  all  the  discussions  upon  the  subject,  he  did  not  once 
intimate  that  there  was,  or  ever  had  been,  the  slightest  difference  be 
tween  him  and  the  other  members  of  the  Administration.  Do  you 
mean  to  say  that  this  was  mere  sham  ?  Was  he  so  utterly  devoid  of 
all  sincerity,  honor,  and  truth,  that  he  gave  the  whole  weight  of  his 
influence  and  power  to  the  support  of  a  doctrine  which  he  believed  to 
be  not  only  false,  but  pernicious  ?  If  he  was  such  a  knave  as  that, 
then  tell  me  what  reliance  can  be  placed  on  any  statement  he  may 
have  made  to  Mr.  Dawes. 

III.  Did  he  betray  the  Buchanan  Administration  while  he  was  a 
member  of  it  ?  Was  he  false  to  the  principles  that  he  pretended  to 
believe  in  ?  Was  he  treacherously  engaged  with  you  in  trying  to 
defeat  the  measures  he  was  trusted  to  support  ?  Did  he  aid,  and 
strengthen,  and  assist  you  in  your  efforts  to  blacken  the  reputation  of 
his  associates  and  friends  ?  Before  these  questions  are  answered,  let 
us  look  for  a  moment  at  the  situation  we  were  in. 

Mr.  Buchanan  was  compassed  round  on  all  sides  with  more  diffi 
culties  and  dangers  than  any  other  public  man  in  this  country  ever 
encountered.  The  party  which  elected  him  was  perfectly  routed  ;  its 
force  wasted  by  division,  its  heart  broken  by  defeat.  Every  Northern 
State  was  in  the  hands  of  enemies,  flushed  with  the  insolence  of  newly 
acquired  power ;  and  after  his  official  condemnation  of  secession,  the 
South  fell  away  from  his  side  in  a  body.  With  bitter,  remorseless, 
unrelenting  foes  in  front,  and  flank,  and  rear,  he  was  literally  unsup 
ported  by  any  political  organization  capable  of  making  itself  felt. 
But  he  was  "  shielded,  and  helmed,  and  weaponed  with  the  truth," 
and  he  went  right  onward  in  the  path  made  sacred  by  the  footsteps  of 
his  great  predecessors.  He  declared  the  secession  ordinances  mere 
nullities  ;  the  Union  was  not  for  a  day,  but  for  all  time  ;  a  State 
could  not  interpose  itself  between  the  Federal  Government  and  indi 
vidual  citizens  who  violated  Federal  laws  ;  the  coercive  power  did  not 
apply  to  a  State,  and  could  not  be  used  for  purposes  of  indiscriminate 
carnage  in  which  the  innocent  and  the  guilty  would  be  mingled  to 
gether  ;  but  the  laws  must  be  executed,  and  the  just  rights  of  the 
Federal  Government  maintained  in  every  part  of  the  country  against 
all  opposers.  The  whole  theory  of  the  Constitution,  as  expounded  by 
the  men  that  made  it,  and  all  their  successors  down  to  that  time,  jus 
tice,  humanity,  patriotism,  honor,  and  conscience,  required  him  to 
announce  and  maintain  these  principles.  They  were  not  only  true, 
but  were  either  expressly  or  impliedly  admitted  to  be  true  by  all  ex 
cept  the  open  avowed  enemies  of  the  Union.  The  secessionists,  of 
course,  had  trained  themselves  to  a  different  way  of  thinking,  and 


POLITICAL  ESSAYS  AND  LETTERS.  277 

they  immediately  assumed  an  attitude  of  pronounced  hostility  to  the 
Administration.  The  foremost  of  the  abolition  orators  and  the  lead 
ing  newspaper  organ  of  the  so-called  Kepublican  party  took  the  high 
ground  that  the  Southern  States  had  a  right  to  break  up  the  Union 
if  they  pleased,  and  could  not  justly  be  opposed.  But  though  they 
"  drew  much  people  after  them,"  and  gave  great  encouragement  to 
the  insurrectionary  movement,  no  man  who  was  at  once  honest,  intel 
ligent,  and  true  to  the  country,  failed  to  see  the  wisdom  of  the  Presi 
dent's  views.  The  President  elect  indorsed  them  fully  on  his  way  to 
the  capital,  as  he  'did  afterward  by  his  official  action.  From  all 
quarters  addresses  and  petitions  came  up,  which  showed  the  popular 
appreciation  of  them.  Even  the  Massachusetts  Legislature,  without 
one  dissenting  voice  in  its  more  numerous  branch,  and  by  an  over 
whelming  majority  in  the  other  house,  passed  a  solemn  resolution 
approving  them  in  the  strongest  language,  and  offering  to  aid  in 
carrying  them  out.  But  everything  depended  on  Congress  ;  and  what 
did  Congress  do  ?  Both  Houses  were  completely  in  the  hands  of  shal 
low  partisans,  who  were  either  too  stupid  to  understand  their  duty,  or 
too  dishonest  to  perform  it.  The  men  of  most  ability  and  integrity 
whom  Republican  constituents  had  sent  there — such  men,  for  instance, 
as  Charles  Francis  Adams — were  heard  but  not  heeded.  The  Presi 
dent,  thoroughly  informed  on  the  whole  subject,  communicated  all 
the  facts  in  a  special  message,  told  Congress  that  the  powers  confided 
to  him  were  wholly  inadequate  to  the  occasion,  demonstrated  the  ab 
solute  necessity  of  further  legislation,  and  implored  them  not  to  post 
pone  it,  for  the  danger,  imminent  then,  was  increasing  with  every 
moment  of  delay.  To  all  this  they  were  as  deaf  as  adders.  They 
could  be  reached  by  no  appeal  to  their  hearts  or  consciences.  They 
neither  adopted  the  executive  recommendation,  nor  gave  a  reason  for 
refusing.  If  any  measure,  having  the  least  tendency  either  to  restore 
peace  or  prepare  for  war,  got  so  far  as  to  be  proposed,  it  was  uni 
formly  referred  to  a  committee,  where  it  was  sure  to  be  quietly  stran 
gled.  The  issues  of  life  and  death  to  the  nation  hung  upon  their 
action,  and  they  would  not  lift  a  finger  to  save  it.  No  legislative 
body,  since  the  beginning  of  the  world,  ever  behaved  in  a  great  crisis 
with  such  scandalous  disregard  of  its  duty. 

But  if  there  were  no  statesmen  among  the  managers  of  that  Con 
gress,  there  were  plenty  of  demagogues ;  if  they  were  indifferent  to 
the  fate  of  the  nation,  they  were  intensely  alive  to  the  interests  of 
their  faction  ;  if  the  regular  committees  slept  supinely  on  the  great 
public  questions  submitted  to  them,  the  secret  committee,  spawned  by 
a  caucus,  went  prowling  about  with  activity  as  incessant  as  it  was 
stealthy  and  malignant.  You  could  not  gainsay  the  views  which  the 
Administration  took  of  their  own  duty  or  yours,  nor  deny  the  wisdom 
of  the  recommendations  they  made ;  but  you  could,  and  did,  answer 


278  POLITICAL  ESSAYS  AND  LETTERS. 

them  with  a  storm  of  personal  detraction.  The  air  was  filled  with 
falsehood ;  the  atmosphere  was  saturated  with  slander,  the  voice  of  truth 
was  drowned  in  <l  the  loud  roar  of  foaming  calumny."  This  crusade 
was  conducted  with  so  much  vigor  and  success  that  some  members  of 
the  Administration  were  pursued  into  private  life  by  the  rage  of  the 
partisan  mob,  and  thousands  of  the  worthiest  men  in  the  land  were 
actually  imprisoned  and  persecuted  almost  to  death,  for  nothing  worse 
than  expressing  a  friendly  opinion  of  them.  The  messages  of  the  Presi 
dent  will  stand  for  ever  a  monument  to  the  wisdom,  foresight,  and 
honest  patriotism  of  the  executive  Administration,  while  history  will 
proclaim  through  all  time  the  dishonor  of  that  Congress  which  could 
answer  such  appeals  with  nothing  but  vituperation  and  insult. 

It  was  at  such  a  juncture  that  Mr.  Stanton  was  appointed  to  take 
a  high  and  most  confidential  place  in  the  Administration.  His  lan 
guage  glowed  with  gratitude,  his  words  spoke  all  the  fervor  of  personal 
devotion  to  his  chief  and  his  colleagues  ;  he  gave  his  thorough  approval 
to  the  measures  which  they  thought  necessary  to  preserve  the  unity  of 
the  nation  in  the  bonds  of  peace.  Yet  you  inform  us  that  he  did  im 
mediately  put  himself  in  communication  with  the  opposition  ;  sought 
out  you  and  others  whom  he  had  never  known  before,  and  sought  you 
solely  because  you  were  enemies  of  the  Administration  ;  offered  him 
self  as  your  spy,  and  did  act  for  you  in  the  capacity  of  a  false  delator ; 
went  skulking  about  at  midnight  to  aid  you  in  defeating  the  measures 
which  with  us  he  pretended  to  support ;  forgathered  with  your  secret 
committee,  and  gave  you  assistance  in  carrying  on  your  personal  war 
fare  against  his  benefactors ;  nay,  worse  than  all  that,  he  helped  you 
to  trump  up  a  charge  of  treason  against  one  of  his  colleagues — a  charge 
which  he  knew  to  be  false — a  charge  for  which,  if  it  had  been  true, 
that  trusting  friend  might  lawfully,  and  would  deservedly,  have  been 
hanged  by  the  neck  till  he  was  dead.  Oh  !  it  was  too  foul ;  it  was 
base  beyond  the  lowest  reach  of  comparison.  If  your  story  be  un 
founded — if  Stanton,  after  all,  was  a  true  and  honorable  man — how  will 
you  answer  in  the  judgment  day  for  this  horrible  outrage  on  his  mem 
ory  and  on  the  feelings  of  his  friends  ? 

"  If  thou  dost  slander  him  and  torture  us, 
Never  pray  more;  abandon  all  remorse ; 
On  horror's  head  horrors  accumulate ; 
For  nothing  canst  thou  to  damnation  add 
Deeper  than  that." 

But  let  justice  be  done  though  the  heavens  should  fall.  Some,  at 
least,  of  your  statements  are  true,  unless  Mr.  Dawes,  Mr.  Howard,  Mr. 
Seward,  and  Mr.  Sumner  have  volunteered  to  help  you  by  sacrificing 
the  character  of  "the  great  Secretary." 


POLITICAL  ESSAYS  AND  LETTERS.  279 

I  will  not  waste  time  upon  the  details  which  your  witnesses  have 
given  of  his  treachery.  It  appears  to  have  been  a  free-will  oifering  of 
his  own,  induced  by  no  solicitation  of  yours,  but  tendered  by  himself 
ex  mero  motu.  The  moment  he  was  inducted  into  office  he  looked 
about  to  ascertain  who  were  the  bitterest  and  most  malignant  enemies 
of  the  men  to  whom  he  owed  all  his  public  importance  and  much  of 
his  private  prosperity.  He  found  them  quickly,  and,  though  they 
were  entire  strangers  to  him,  he  put  himself  immediately  into  secret 
communication  with  them,  took  service  under  them  as  their  regular 
spy,  and  exercised  himself  diligently  in  that  base  vocation,  making  re 
ports  to  them  daily,  and  sometimes  twice  a  day,  until  the  close  of  his 
official  term,  when  his  occupation  necessarily  ceased.  This  mean  em 
ployment  must  have  taken  up  most  of  the  time  which  should  have  been 
devoted  to  the  duties  of  an  office  on  which  the  public  business,  always 
heavy,  was  then  pressing  with  unusual  weight. 

He  did  not  communicate  any  knowledge  which  was  necessary  to 
guide  you  in  the  discharge  of  your  duties,  for  every  fact  of  that  kind 
was  as  accessible  to  you  as  to  him ;  the  Administration  kept  nothing 
back ;  the  President  volunteered  to  give  all  he  knew  concerning  the 
state  of  the  Union  ;  no  department  was  closed  against  your  investiga 
tions  ;  every  call  for  information  was  promptly  and  fully  answered.  If 
that  had  not  been  enough,  every  member  of  the  Cabinet  would  have 
been  perfectly  free  to  speak  with  any  member  of  Congress,  or  to  go 
in  person  before  any  committee.  Mr.  Seward  did  confer  with  me 
fully  at  the  State  Department  in  open  daylight,  without  any  dodging 
about  it ;  and  he  was  always  welcome,  as  he  is  now,  to  tell  everything 
that  passed,  for  he  neither  asked  nor  could  have  asked  any  question, 
if  the  country  had  an  interest  in  it,  which  I  was  not  willing  to  answer. 
With  all  the  channels  of  truthful  information  thus  open  and  unob 
structed,  you  preferred  to  get  what  you  wanted  from  a  spy.  Mr. 
Howard  has  the  cheek  to  proclaim  that  during  the  "labors"  of  his 
committee,  instead  of  acting  upon  honest  and  legitimate  evidence,  he 
sent  inquiries  to  this  secret  informer,  who  answered  by  giving  infor 
mation  of  "great  importance,"  but  his  communications  "were  always 
indirect  and  anonymous  !  " 

If  there  be  one  sentence  in  your  whole  article  which  is  marked 
more  than  another  with  your  characteristic  hardihood  of  assertion,  it 
is  that  in  which  you  try  to  make  a  merit  of  Stan  ton's  treachery.  It  is 
curiously  reckless,  and  for  that  reason  worth  giving  in  your  very 
words.  "  These  facts,"  say  you,  "  were  stated  to  illustrate  Mr.  Stan- 
ton's  exalted  patriotism,  which  prompted  him  to  rise  above  the  claims 
and  clamors  of  partisanship,  and  to  invoke  the  aid  of  loyal  men  beyond 
the  lines  of  his  own  party,  and  outside  of  the  Administration  of  which 
he  was  a  member,  to  serve  his  imperiled  country,  menaced  with  a  foul 
and  wicked  revolt."  Why,  this  is  precisely  what  the  President  and 


280  POLITICAL  ESSAYS  AND  LETTERS, 

all  the  honest  men  of  his  Cabinet  were  doing  openly  and  above  board. 
They  had  no  legal  power  which  could  avail  to  serve  the  "  imperiled  coun 
try  "  without  the  co-operation  of  Congress,  which  was  wholly  ruled 
by  the  opposition.  They  invoked  "  the  aid  of  loyal  men  beyond  the  lines 
of  their  own  party  and  outside  of  the  Administration/'  because  it  was 
from  thence  only  that  aid  could  come.  But  with  you  and  your  associ 
ates  the  "  claims  and  clamors  of  partisanship  "  were  so  much  higher  than 
considerations  of  public  duty,  that  you  not  only  refused  all  aid  to  the 
country,  but  you  insulted,  and  abused,  and  vilified  the  President  and 
his  friends  for  asking  it.  Was  Stanton,  like  the  other  members  of  the 
Administration,  invoking  aid  for  the  imperiled  country  ?  Did  he 
skulk  about  in  secret  to  effect  in  that  way  what  his  brethren  were  try 
ing  to  accomplish  by  an  open  appeal  to  the  reason  and  conscience  of 
their  political  opponents  ?  If  so,  how  did  he  succeed  ?  Did  his  se 
cret,  anonymous,  and  indirect  communications  ever  produce  the  slight 
est  symptom  of  patriotic  emotion  in  the  minds  of  those  who  received 
them  ?  What  did  you,  or  Mr.  Sumner,  or  Mr.  Dawes,  or  Mr.  How 
ard,  or  Mr.  Seward,  do  to  avert  the  great  calamity  of  civil  war  ? 
What  measures  did  any  of  you  bring  forward  to  serve  the  country  ? 
In  that  hour  of  peril  what  man  among  you  acted  like  a  man  ?  Which 
of  you  "rose  to  the  height  of  that  great  argument,"  or  showed  himself 
fit  in  mind  or  heart  to  meet  the  responsibilities  of  the  time  ?  The 
Union  was  indeed  "  menaced  with  a  foul  and  wicked  revolt,"  and  all 
you  did  was  to  "  let  the  Union  slide."  The  public  danger  excited  no 
anxiety  in  your  minds  ;  public  affairs  received  no  attention  at  your 
hands  ;  but  you  were  all  the  while  mousing  about  after  some  personal 
calumny  by  which  you  hoped  to  stir  up  the  popular  passions  against 
the  true  friends  of  the  country  ;  and  Stanton,  unless  you  slander  him, 
made  love  to  the  infamous  business  of  helping  you. 

You  have  given  us  but  small  samples  of  the  "  indirect  and  anony 
mous  communications  "  which  Stanton  made  to  you  and  your  asso 
ciates.  The  bulk  of  them  must  be  enormous.  He  was  engaged  for 
two  or  three  months  fabricating  at  least  one  tale  every  day  for  Mr. 
Seward,  and  another  consisting  of  "  the  most  startling  facts  "  to  suit 
the  needs  of  Mr.  Howard,  while  you  and  Mr.  Dawes  were  gratified  in 
a  similar  way  at  the  same  time.  Are  these  "startling  facts"  held 
back  for  some  other  funereal  occasion  ?  Take  notice  yourself,  and  tell 
your  friends,  that  while  their  stories  are  hid  away  from  the  light,  the 
presumption  that  they  are  not  only  false,  but  known  to  be  false,  is 
growing  stronger  and  stronger  every  day.  You  had  better  open  your 
budgets  at  once. 

There  is  a  point  or  two  here  on  which  I  would  like  to  draw  you 
out.  Mr.  Seward  says  that  he  and  Mr.  Stanton  discussed  and  settled 
measures.  The  topic  which  absorbed  the  attention  of  all  minds  at 
that  time  was  Fort  Sumter.  Compared  to  that,  all  others  were  insig- 


POLITICAL  ESSA  YS  AND  LETTERS.  281 

nificant ;  and  of  course  the  measures  relating  to  it  were  not  overlooked. 
It  is  known,  from  the  published  statements  of  Mr.  Welles,  Judge 
Campbell,  and  others,  that  Mr.  Seward  was  deeply  engaged  in  a  plot 
to  surrender  that  fort,  which  plot  he  afterward  brought  to  a  head,  and 
by  sundry  tricks  nearly  made  it  successful.  Stanton  professed  to 
agree  with  us  that  the  fort  ought  to  be  kept ;  but  you  have  shown  that 
his  professions  in  the  Cabinet  were  not  very  reliable,  and  Governor 
Brown  has  proved  that  he  could  be  a  secessionist  as  well  as  anything 
else,  if  occasion  required  it.  Now,  what  did  they  settle  upon  about 
Fort  Sumter  ?  They  were  engaged  in  something  which  both  knew  to 
be  disreputable  if  not  criminal ;  their  secrecy,  their  employment  of  a 
medium,  their  quick  dodge  when  they  met  on  the  street,  the  mortal 
terror  of  detection  which  they  manifested  throughout,  all  show 
plainly  enough  that  they  had  no  honest  object.  Tell  us  if  they  were 
contriving  a  plan  to  put  the  strongest  military  fortress  of  the  Govern 
ment  into  the  hands  of  its  enemies. 

The  midnight  meeting  between  Messrs.  Stunner  and  Stanton  is  in 
all  its  aspects  the  most  astounding  of  historical  revelations.  If  you 
recall  Mr.  Sumner  to  the  stand,  it  is  hoped  that  he  will  see  the  neces 
sity  of  being  much  more  explicit  than  he  has  yet  been.  From  what 
he  has  said,  it  appears  that  Stanton  "  described  to  him  the  determina 
tion  of  the  Southern  leaders,  and  developed  particularly  their  plan  to 
get  possession  of  the  national  capital  and  the  national  archives,  so 
that  they  might  substitute  themselves  for  the  existing  Government." 
This  is  so  extremely  interesting  that  it  would  be  a  sin  against  the  pub 
lic  not  to  examine  it  further. 

Early  in  the  winter  somebody  started  the  sensational  rumor  that 
on  or  before  the  4th  of  March  a  riot  would  be  got  up  in  Washington, 
which  might  seriously  endanger  the  peace  of  the  city.  It  was  dis 
cussed  and  talked  about,  and  blown  upon  in  various  ways,  but  no  tangi 
ble  evidence  of  its  reality  could  ever  be  found.  The  President  re 
ferred  to  it  in  a  message  to  Congress,  and  said  he  did  not  share  in 
such  apprehensions  ;  but  he  pledged  himself  in  any  event  to  preserve 
the  peace.  When  the  midnight  meeting  took  place,  the  rumor  had 
lived  its  life  out — had  paid  its  breath  to  time  and  the  mortal  custom 
of  such  things  at  Washington  ;  it  was  a  dead  canard  which  had  ceased 
to  alarm  even  women  or  children.  This  was  certainly  not  the  sub 
ject  of  the  communication  made  that  night  at  one  o'clock.  Stanton 
did  not  surround  himself  with  all  the  adjuncts  of  secrecy,  darkness, 
and  terror,  to  tell  an  old  story  which  had  been  in  everybody's  mouth 
for  weeks  before,  of  an  impossible  street  riot  by  the  populace  of  Wash 
ington.  What  he  imparted  was  a  secret  not  only  new,  but  deep  and 
dangerous,  fit  for  the  occasion,  and  worthy  to  be  whispered  confiden 
tially  at  midnight.  He  disclosed  a  "plan  of  the  Southern  leaders  to 
get  possession  of  the  capital  and  the  archives,  and  to  substitute  them- 


282  POLITICAL  ESSAYS  AND  LETTERS. 

selves  for  the  existing  Government. "  It  was  a  coup  d'etat  of  the  first 
magnitude — a  most  stupendous  treason.  This  plan  Mr.  Stanton  "  de 
veloped  particularly,"  that  is  to  say,  gave  all  the  details  at  length. 
Mr.  Sumner  manifestly  believed  what  he  heard  ;  he  received  the  reve 
lation  into  his  heart  with  perfect  faith  ;  and  he  did  not  underestimate 
the  public  danger  ;  but  he  did  nothing  to  defeat  the  treason,  or  even 
to  expose  it.  He  was  thoroughly  and  minutely  informed  of  a  plan 
prepared  by  Southern  leaders  to  revolutionize  the  Government,  and 
he  kept  their  counsel  as  faithfully  as  if  he  had  been  one  of  themselves. 
He  took  Stan  ton's  frightful  communication  as  quietly  as  he  took  the 
President's  message.  Nothing  could  stir  his  sluggish  loyalty  to  any 
act  which  might  tend  to  save  his  "imperiled  country." 

Mr.  Sumner  says  that  when  Mr.  Stanton  made  these  statements  to 
him  he  was  struck  "by  the  knowledge  he  showed  of  hostile  move 
ments."  That  is  precisely  what  strikes  me  also  with  wonder  and 
amazement.  Where  in  the  world  did  he  learn  "the  determination  of 
the  Southern  leaders  "  ?  Where  did  he  get  an  account  of  the  intended 
coup  d'etat  so  detailed  that  he  was  able  to  develop  it  particularly  ?  This 
knowledge  becomes  astounding  when  we  recollect  that,  so  far  as  now 
appears,  nobody  else  outside  of  the  "  Southern  leaders  "  had  the  least 
inkling  of  it.  Is  it  possible  that  his  connection  with  the  secessionists, 
and  his  professed  devotion  to  their  cause,  went  so  far  that  they  took 
him  into  their  confidence,  and  told  him  what  "  hostile  movements " 
they  intended  to  make  on  the  Government  ?  How  did  he  get  these 
secrets  if  not  from  them  ?  Or  must  we  be  driven  at  last  to  the  conclu 
sion  that  the  whole  thing  was  a  mere  invention,  imposed  on  Mr.  Sum 
ner  to  delude  him  ? 

But  Mr.  Sumner  owes  it  to  the  truth  to  make  a  fuller  statement. 
Let  us  have  the  particulars  which  Mr.  Stanton  developed  to  him.  We 
have  a  right  to  know  not  only  who  were  the  Southern  traitors  engaged 
in  this  plan,  but  who  were  confederated  with  them  in  Washington.  I 
suppose  Mr.  Sumner,  as  well  as  Mr.  Stanton,  had  "instinctive  in 
sight  into  men  and  things  "  enough  to  know  that  no  government  was 
ever  substituted  for  another  by  a  sudden  movement,  without  some  co 
operation  or  connivance  of  officers  in  possession.  Who  among  Stan- 
ton's  colleagues  did  he  say  was  engaged  in  this  affair  ?  Did  he  charge 
the  President  with  any  concern  in  it  ?  If  he  declared  all  or  any  of 
them  to  be  innocent,  does  not  Mr.  Sumner  see  the  injustice  of  keeping 
back  the  truth  ?  Did  Stanton  tell  him  that  he  had  communicated 
the  facts  to  the  President  and  Cabinet  ?  If  no,  did  he  give  a  reason 
for  withholding  them  ?  And  what  was  the  reason  ?  Was  the  guilty 
secret  confined  to  his  own  breast,  or  did  any  other  member  of  the 
Administration  share  his  knowledge  of  it  ?  If  yes,  who  ?  Mr.  Sum 
ner  has  struck  so  rich  a  vein  of  historical  fact  (or  fiction)  that  he  is 
bound  to  give  it  some  further  exploitation. 


POLITICAL  ESSAYS  AND  LETTERS.  283 

The  following  passage  in  Mr.  Sumner's  letter  to  yon  excites  the 
liveliest  desire  for  more  information.  After  describing  his  visit  to  the 
Attorney-General's  office,  and  Mr.  Stanton's  reception  of  him,  he  goes 
on  thus  :  "  He  began  an  earnest  conversation,  saying  he  must  see  me 
alone — that  this  was  impossible  at  his  office — that  he  was  watched  by 
the  traitors  of  the  South — that  my  visit  would  be  made  known  to  them 
at  once  ;  and  he  concluded  by  proposing  to  call  on  me  at  my  lodgings 
at  one  o'clock  that  night,"  etc.,  etc.  Why  was  Mr.  Stanton  afraid  of 
the  Southern  traitors  ?  Why  did  they  set  a  special  watch  over  him  ? 
No  other  member  of  the  Administration  was  tormented  with  a  fear 
like  that.  All  of  Mr.  Stanton's  colleagues  felt  at  perfect  liberty  to 
speak  out  their  opposition  to  the  hostile  movements  of  the  South,  and 
they  all  did  it  without  concealment  or  hesitation.  But  Stanton  was 
put  by  the  Southern  traitors  under  a  surveillance  so  strict  that  he 
could  not  speak  with  a  Senator  except  at  midnight,  by  stealth,  and  in 
secrecy.  At  his  own  office  it  was  impossible  to  see  such  visitors  ;  the 
Southern  eye  was  always  on  him.  How  did  those  traitors  of  the  South 
manage  to  control  Mm  as  they  controlled  nobody  else  ?  By  what 
means  did  they  "  cow  his  better  part  of  man,"  and  master  all  his 
movements  ?  What  did  they  do,  or  threaten  to  do,  which  made  him 
their  slave  to  such  a  fearful  extent  ?  His  relations  with  them  must 
have  been  very  peculiar.  The  suspicion  is  not  easily  resisted  that  he 
had  his  nocturnal  meetings  with  Southern  men  also,  and  that  he 
feared  simply  the  discovery  of  his  double  dealing.  This  is  what  we 
must  believe  if  we  suppose  that  he  really  was  shaken  by  unmanly  ter 
rors.  But  I  confess  my  theory  to  be  that  he  did  not  feel  them,  and 
that  he  made  a  pretence  of  them  only  that  he  might  fool  Mr.  Sumner 
to  the  top  of  his  bent.  What  does  Mr.  Sumner  himself  think  ?  Was 
he,  or  was  he  not,  the  victim  of  a  cruel  humbug  ? 

IV.  Did  Mr.  Stanton  conspire  with  the  political  enemies  of  the 
Administration  to  arrest  Mr.  Toucey  on  a  false  charge  of  treason  ? 
That  such  a  conspiracy  existed  seems  to  be  a  fact  established.  What 
you  say  about  it  shows  that  you  knew  and  approved  it.  Mr.  Dawes 
and  Mr.  Howard  were  in  it,  and  no  doubt  many  others  who  have  not 
confessed  it  themselves,  or  been  named  by  you.  But  Mr.  Stanton  was 
not  with  you.  The  evidence  of  his  complicity  which  you  produce  is 
altogether  too  indefinite,  indirect,  and  obscure  to  convict  him  of  so 
damning  a  crime.  The  enormous  atrocity  of  the  offence  makes  it  im 
possible  to  believe  in  his  guilt  without  the  clearest  and  most  indubita 
ble  proof. 

Stanton  and  Toucey  were  at  that  time  acting  together  in  perfect 
harmony,  closely  united  in  support  of  the  same  general  measures  and 
principles.  Toucey,  at  all  events,  was  sincere  ;  and  Stanton  knew  him 
to  be  a  just,  upright,  and  honorable  man,  whose  fidelity  to  the  Union, 
the  Constitution,  and  the  laws  was  as  firm  as  the  foundation  of  the 


284  POLITICAL  ESSAYS  AND  LETTERS. 

everlasting  hills.  To  Toucey  himself,  and  to  his  friends,  he  never  ex 
pressed  any  sentiment  but  esteem  and  respect,  and  he  declared  his  con 
fidence  in  him  even  to  Mr.  Seward,  who  was  his  enemy,  as  you  your 
self  have  taken  the  pains  to  prove.  "Was  the  destruction  of  this  man 
one  of  the  purposes  for  which  the  first  law-officer  of  the  Government 
sneaked  about  among  your  secret  committees,  met  the  plotters  in  their 
midnight  lurking-places,  employed  a  go-between  to  fetch  and  carry 
his  clandestine  messages,  and,  like  a  treacherous  informer,  wrote  accu 
sations  which  he  trusted  even  to  the  hands  of  his  confederates  only 
while  they  were  read  in  the  light  of  a  street-lamp  ? 

There  were  two  distinct  and  separate  ways  in  which  the  conspira 
tors  could  effect  their  designs  upon  the  man  whom  they  had  marked 
out  for  their  victim.  One  was  to  take  him  into  custody  under  a  legal 
warrant,  regularly  issued  by  a  competent  judicial  officer.  But  to  get 
such  a  warrant  it  was  absolutely  necessary  that  somebody  should  per 
jure  himself,  by  swearing  that  Toucey  had  levied  war  against  the 
United  States.  Was  Stanton  to  make  this  false  oath,  in  addition  to 
the  other  proofs  which  he  gave  of  his  loyalty  ?  Or  was  it  expected 
that  Peter  II.  Watson,  who  carried  the  charges,  would  swear  to  them 
also  ?  If  you  did  not  rely  on  Stanton  or  Watson,  was  it  you,  or  Mr. 
Dawes,  or  Mr.  Howard — which  of  you — that  meant  to  do  the  needful 
thing  ?  Or  was  it  intended  that  all  three  of  you  should  entwine  your 
consciences  in  the  tender  embrace  of  a  joint  affidavit  ?  Or  had  you 
looked  out  for  some  common  "man  of  Belial,"  who  was  ready  to  be 
suborned  for  the  occasion  ?  No,  no  ;  you  may  have  been  eager  to  feed 
fat  the  ancient  grudge  you  bore  against  Toucey  for  being  a  Democrat 
and  a  "Union-saver,"  but  none  of  you  would  have  sworn  that  he  was 
guilty  of  any  criminal  offense.  Nor  could  Stanton  or  Watson  have 
been  persuaded  to  encounter  such  peril  of  soul  and  body.  Nor  could 
you,  if  you  had  tried  your  best,  have  found  any  other  person  to  make 
the  accusation  in  the  form  of  a  legal  oath.  The  price  of  perjury  was 
not  then  high  enough  in  the  Washington  market  to  draw  out  from 
their  hiding-places  that  swarm  of  godless  wretches  who  afterward 
swore  away  the  lives  of  men  and  women  with  such  fearful  alacrity. 

From  all  this  it  is  very  clear  that  there  was  to  be  no  swearing  in  the 
case,  consequently  no  judicial  warrant,  and  no  lawful  arrest.  But 
Toucey  was  to  be  arrested.  How  ?  Of  course  in  the  only  other  way 
it  could  possibly  be  done.  The  conspirators  intended  to  kidnap  him. 
Mr.  Dawes  says  that  from  the  hour  when  the  paper  directing  the  ar 
rest  was  read,  under  the  street-lamp,  and  "  went  back  to  its  hiding- 
place,"  the  Secretary  was  watched.  The  members  of  the  committee, 
or  the  hirelings  they  employed,  dogged  his  footsteps,  and  were  ready 
to  spring  upon  him  whenever  they  got  the  signal.  They  could  rush 
out  as  he  passed  the  mouth  of  a  dark  alley,  knock  him  down  with 
their  bludgeons,  and  drag  him  off.  Or  the  lawless  and  "patriotic" 


POLITICAL  ESSAYS  AND  LETTERS.  285 

gang  might  burglariously  break  into  his  house  in  the  night-time, 
and,  impelled,  as  you  would  say,  by  "high  and  holy  motives,"  take 
him  by  the  throat  and  carry  him  away.  After  proceeding  thus  far, 
it  would  be  necessary  to  dispose  of  him  in  some  private  dungeon  (for 
you  knew  that  the  public  prisons  and  forts  could  not  then  be  prosti 
tuted  to  such  base  uses),  where  no  friend  could  find  him,  and  whence 
no  complaint  of  his  could  reach  the  open  air.  Even  in  that  case, 
"with  all  appliances  and  means  to  boot,"  his  speedy  liberation  would 
be  extremely  probable,  and  the  condign  punishment  of  the  malefactors 
almost  certain,  unless  they  acted  upon  the  prudent  maxim  that  "  dead 
men  tell  no  tales."  The  combination  of  Booth  and  others  to  kidnap 
Mr.  Lincoln  was  precisely  like  this  in  its  original  object ;  and  it  was 
pursued  step  by  step,  until  it  ended  in  a  most  brutal  murder.  Facilis 
descensus  Averni. 

Was  this  a  becoming  business  for  Senators  and  Representatives  to 
be  engaged  in  ?  In  that  "hour  of  national  agony,"  when  hideous 
destruction  stared  the  country  in  the  face  ;  when  stout  men  held 
their  breath  in  anxious  dread ;  when  the  cry  for  relief  came  up  to 
Congress  on  the  wings  of  every  wind ;  when  the  warning  words  of 
the  President  told  you  that  the  public  safety  required  your  instant  at 
tention — was  that  a  time  to  be  spent  in  prosecuting  plots  like  this  ? 
I  will  not  ask  you  to  repent  of  the  wickedness ;  it  is  not  wrong  in 
your  eyes ;  it  comes  up  to  your  best  ideas  of  loyalty,  patriotism,  and 
high  statesmanship.  Your  witnesses  think  of  it  as  you  do  ;  they  take 
pride  and  pleasure  in  their  guilt,  and  wrap  this  garment  of  infamy 
about  them  with  as  much  complacency  as  if  it  were  a  robe  of  imperial 
purple. 

But  was  Stanton  in  it  ?  Was  the  Attorney-General  art  and  part 
in  a  foul  conspiracy  to  kidnap  the  Secretary  of  the  Navy,  "his  own 
familiar  friend,  his  brother  who  trusted  in  him,  and  with  whom  he 
ate  bread  "  ?  If  he  had  sent  the  paper  which  was  read  under  the  street- 
lamp,  why  do  you  not  produce  it,  or  at  least  show  by  secondary  evi 
dence  that  it  was  in  his  handwriting  ?  If  Mr.  Watson  was  the  medi 
um  through  whom  he  communicated  his  verbal  directions  to  the  com 
mittee  or  other  persons  confederated  with  him,  why  does  not  Mr. 
Watson  appear  and  say  so  ?  To  fasten  this  great  guilt  on  Stanton 
will  require  evidence  far  better  than  Mr.  Howard's  small  and  silly 
talk  about  "a  bird  which  flew  directly  from  some  Cabinet  minister," 
and  stronger  than  his  lelief  founded  on  the  fact  that  Stanton  was  a 
"  suspicious  character,"  especially  as  Mr.  Howard  admits  his  own  par 
ticipation  in  the  crime,  and  is  therefore  something  more  than  a  "  sus 
picious  character  "  himself.  But  it  is  not  merely  the  defects  in  the 
proof — it  is  the  incredible  nature  of  the  story  which  counts  against 
you.  Stanton  knew,  if  you  did  not,  that  the  contemplated  crime 
could  not  be  perpetrated  with  impunity.  Toucey  breathed  the  deep 


286  POLITICAL  ESSAYS  AND  LETTERS. 

breath  and  slept  the  sound  sleep  of  a  freeman  under  the  guardianship 
of  a  law  which  Stan  ton  at  that  time  did  not  dare  to  violate.  A  Dem 
ocratic  Administration  still  kept  ward  and  watch  over  the  liberty  of 
the  citizen.  A  vulgar  tyranny  which  allowed  abolitionists  to  do  such 
things  upon  their  political  opponents  was  coming,  but  it  had  not 
come  ;  the  reign  of  the  ruffian  and  kidnapper  was  drawing  near,  but 
it  had  not  arrived  ;  the  golden  age  of  the  spy  and  the  false  accuser 
was  beginning  to  dawn,  but  it  had  not  yet  risen. 

You  may  think  it  some  excuse  for  this  false  charge  against  Mr. 
Stanton  that  it  is  not  much  worse  than  others  which  you  have  proved 
to  be  true.  But  justice  requires  that  even  bad  men  shall  suffer  only 
for  those  misdeeds  which  they  have  actually  done.  One  of  the  great 
est  among  American  jurists  held  a  slander  to  be  aggravated  by 
proof  that  the  victim's  character  was  bad  before ;  just  as  a  corporal 
injury  to  a  sick  man  or  a  cripple  is  a  worse  wrong  than  it  would  be  to 
one  of  sound  limbs  and  vigorous  health. 

V.  Mr.  Stanton's  personal  behavior  and  bearing  in  the  Cabinet 
have  been  much  misrepresented  by  others  besides  you.  I  am  told  that 
Mr.  Seward  described  the  supposed  "  scene  "  in  some  speech,  which  I 
have  never  read.  It  was  given  at  length,  and  very  circumstantially, 
in  a  London  paper,  over  the  signature  of  T.  W.  ;  Mr.  Attorney-Gen 
eral  Hoar,  in  a  solemn  oration  which  he  pronounced  before  the  Su 
preme  Court  last  January,  repeated  it  with  sundry  rhetorical  embel 
lishments  ;  nearly  all  the  newspapers  of  your  party  have  garnished 
their  pointless  abuse  of  the  Buchanan  Administration  with  allusions 
to  it  more  or  less  extended  ;  and  no  doubt  the  book-makers  in  the 
sevice  of  the  abolitionists  have  put  it  into  what  you  call  "  contempo 
raneous  history."  So  far  as  I  have  seen  them,  all  these  accounts  differ 
from  one  another,  and  none  is  exactly,  or  even  very  nearly,  like  yours. 
But  they  agree  in  presenting  a  general  picture  of  Mr.  Stanton  as  en 
gaged  in  some  violent  conflict  which  his  colleagues  were  too  dull,  too 
unprincipled,  or  too  timid  to  undertake,  though  some  of  them  after 
ward  plucked  up  heart  enough  to  follow  his  lead.  They  declare  that 
Stanton  took  the  most  perilous  responsibilities,  boldly  faced  the  most 
frightful  dangers,  and  with  heroic  courage  fought  a  desperate  fight 
against  the  most  fearful  odds  ;  that  the  other  members  of  the  Cabinet 
looked  on  at  the  awful  combat  as  mere  spectators  of  his  terrific  valor, 
while  the  President  was  so  frightened  by  the  "fierce  and  fiery"  en 
counter  that  all  he  could  do  was  to  "tremble  and  turn  pale." 

All  this  is  (to  use  Stanton's  own  language)  "a  tissue  of  lies"  ;  a 
mere  cock  and  bull  story  ;  a  naked  invention,  purely  fabulous  ;  a 
falsehood  as  gross  and  groundless  as  any  in  the  autobiography  of 
Baron  Munchausen.  Mr.  Stanton  was  never  exposed  to  any  danger 
whatever  while  he  was  a  member  of  that  Cabinet ;  never  had  any  oc 
casion  to  exhibit  his  courage ;  never  quarreled  with  any  of  his  col- 


POLITICAL  ESSA  YS  AND  LETTERS.  287 

leagues  ;  never  denounced  those  he  differed  from,  and  never  led  those 
with  whom  he  agreed.  He  expressed  his  dissent  from  the  Southern 
members  on  several  questions,  but  no  man  among  us  took  better  care 
than  he  did  to  avoid  giving  cause  of  personal  offense.  He  acquired 
no  ascendency  at  the  council-board,  and  claimed  none ;  he  proposed 
no  measure  of  his  own,  and  when  he  spoke  upon  the  measures  origi 
nated  by  others,  he  presented  no  views  that  were  new  or  at  all  startling. 
He  and  I  never  once  differed  on  any  question,  great  or  small  ;  and 
this,  though  of  course  accidental,  was  still  so  noticeable  that'  he  said 
he  was  there  only  to  give  me  two  votes  instead  of  one.  He  did  not 
differ  with  Mr.  Holt  on  any  important  question  concerning  the  South 
more  than  once,  and  that  was  when  the  compact,  afterward  called  a 
truce,  about  Fort  Pickens  was  made.  He  must  have  agreed  with  the 
President  when  he  agreed  with  Mr.  Holt,  for  the  latter  gentleman  de 
clared  most  emphatically  that  the  President  constantly  gave  him  a 
"firm  and  generous  support."  He  never  insulted  the  President. 
Mr.  Buchanan  knew  how  to  maintain  the  dignity  of  his  place,  and  en 
force  the  respect  due  to  himself,  as  well  as  any  man  that  ever  sat  in 
that  chair.  It  is  most  certain  that  Mr.  Stanton  always  treated  him 
with  the  profoundest  deference.  If  he  had  been  rash  enough  to  take 
on  the  airs  of  a  bully,  or  had  ever  made  the  least  approach  to  the 
insolent  rudeness  for  which  you  desire  to  credit  him,  he  would  in 
stantly  have  lost  his  commission,  and  you  would  have  lost  your  spy. 

Among  the  versions  which  have  been  given  of  this  false  tale,  yours 
is  the  most  transparent  absurdity ;  for  you  give  dates  and  circum 
stances  which  make  it  ridiculous.  At  a  time  when  Floyd  was  in 
disgrace  with  the  whole  Administration — after  all  his  brethren  had 
broken  with  him,  and  he  had  been  notified  of  the  President's  intention 
to  remove  him — when  he  was  virtually  out  of  office  and  completely 
stripped  of  all  influence — Major  Anderson  removed  his  command  from 
Fort  Moultrie  to  Fort  Sumter.  You  assert  that  Floyd,  hearing  of 
this,  forthwith  arraigned  the  President  and  Cabinet  for  the  act  of 
Major  Anderson,  declaring  it  to  be  a  violation  of  their  pledges,  though 
it  was  not  done  by  them,  and  they  had  given  no  pledge  on  the  subject. 
That  he  could  or  would  make  an  arraignment  for  any  cause  of  the 
body  by  which  he  had  himself  just  before  been  condemned  is  incredi 
ble  ;  that  he  would  arraign  it  on  such  a  charge  is  beyond  the  belief  of 
any  sane  being.  But  such,  by  your  account,  was  the  occasion  which 
Stanton  took  to  display  his  superhuman  courage.  It  was  then  that  he 
armed  his  red  right  hand  to  execute  his  patriotic  vengeance  on  that 
fallen,  powerless,  broken  man.  He  must  also  have  let  fall  at  least  a 
part  of  his  horrible  displeasure  on  the  head  of  the  President ;  else  why 
did  the  President  "tremble  and  turn  pale"  ?  I  said  this  narrative  of 
yours  was  mere  driveling,  and  I  think  I  paid  it  a  flattering  compli 
ment. 


288  POLITICAL  ESSAYS  AND  LETTERS. 

But  to  explode  the  folly  completely,  I  referred  you  to  the  record, 
which  I  said  would  show  that  Major  Anderson  acted  in  strict  accord 
ance  with  orders  sent  him  through  the  War  Department,  of  which 
Floyd  himself  was  the  head  ;  and  this  you  contradict.  It  is  perfectly 
manifest  that  you  examined  the  record,  for  you  transcribe  from  it  and 
print  two  telegrams  exchanged  between  Floyd  and  Anderson  after  the 
removal  of  the  latter  took  place.  You  saw  on  that  same  record  the 
order  previously  given  —  the  order  on  which  Major  Anderson  was 
bound  to  act,  and  did  act — and  you  have  deliberately  suppressed  it. 
Nay,  you  go  still  further,  and  with  the  order  before  your  eyes  you 
substantially  deny  the  existence  of  it.  I  copy  for  your  especial 
benefit  the  words  which  relate  to  this  point :  "  The  smallness  of  your 
force  (so  say  the  instructions)  will  not  permit  you,  perhaps,  to  occupy 
more  than  one  of  the  three  forts ;  but  an  attack,  or  an  attempt 
to  take  possession  of  either  one  of  them,  will  be  regarded  as  an 
act  of  hostility,  and  you  may  then  put  your  command  into  either 
of  them  which  you  may  deem  most  proper  to  increase  its  power 
of  resistance.  You  are  also  authorized  to  take  similar  steps  when 
ever  you  have  tangible  evidence  of  a  design  to  proceed  to  a  hostile 
act." 

There  is  the  order  in  plain  English  words.  To  make  out  your 
assertion  it  was  necessary  to  conceal  it,  and  you  did  conceal  it  from 
your  readers.  But  that  is  not  all.  You  find  a  telegram  from  Major 
Anderson,  dated  on  the  morning  after  the  removal,  in  which  he  says 
simply  that  he  has  removed,  but  says  nothing  on  the  grounds  on 
which  he  acted.  On  that  same  record,  and  right  beside  the  telegram, 
you  saw  a  letter  from  Major  Anderson  to  the  War  Department,  dated 
the  same  day,  in  which  he  does  refer  to  his  orders,  and  says,  "Many 
things  convinced  me  that  the  authorities  of  the  State  designed  to  pro 
ceed  to  a  hostile  act"  and  then  adds  :  "Under  this  impression  I  could 
not  hesitate  that  it  was  my  solemn  duty  to  move  my  command  from  a 
fort  which  we  could  not  probably  have  held  longer  than  forty-eight  or 
sixty  hours  to  this  one,  where  my  power  of  resistance  is  increased  to  a 
very  great  degree."  You  totally  ignore  this  letter,  in  which  Major 
Anderson  justifies  his  removal  in  the  very  words  of  the  order,  and 
pick  out  a  hasty  telegram,  in  which  nothing  is  said  of  his  orders,  for 
the  purpose  of  proving  that  he  acted  without  orders — an  assump 
tion  which  the  record,  if  honestly  cited,  would  show  to  be  utterly 
false. 

You  will  hardly  venture  to  repeat  your  denial ;  for  besides  the 
original  record  there  are  thousands  of  authentic  copies  scattered  over 
the  nation,  and  anybody  can  find  it  in  Ex.  Doc.  H.  E.,  vol.  vi,  No. 
26,  page  10.  I  do  not  trust  myself  to  make  any  general  remarks 
on  this  glaring  instance  of  mutilated  evidence.  You  are  a  Senator, 
and  I  acknowledge  the  Scriptural  obligation  of  a  private  citizen  not 


POLITICAL  ESSAYS  AND  LETTERS.  289 

to  "speak  evil  of  dignities"  ;  but  of  a  dignity  like  you  it  is  some 
times  so  difficult  to  speak  well  that  my  only  refuge  is  silence. 

You  garble  my  words,  so  as  to  make  them  appear  like  a  denial  that 
Mr.  Stan  ton  ever  wrote  any  letter  at  all  on  the  subject  of  the  "  Cabi 
net  scene,"  whereas  I  asserted  that  no  letter  written  by  him  would  cor 
roborate  your  version  of  it.  After  coolly  striking  out  from  the  sen 
tence  quoted  the  words  which  express  my  proposition,  you  proceed  to 
contradict  it  by  the  statement  of  Mr.  Holt,  who  says  that  a  letter  was 
written,  but  he  declines  to  say  what  was  in  it. 

I  knew  that  Mr.  Schell  had  addressed  Mr.  Stanton  with  the  object 
of  getting  him  to  tell  the  truth  and  tear  away  the  "tissue  of  lies" 
which  so  many  hands  had  woven  about  this  subject.  If  he  answered 
at  all,  the  presumption  was  that  he  would  answer  truly ;  and  if  he 
answered  truly,  instead  of  corroborating  you,  he  must  have  denounced 
the  whole  story  as  a  mere  fabrication.  Do  you  think  now  that,  in  the 
absence  of  all  evidence  showing  or  tending  to  show  the  contents  of  the 
letter,  we  ought  to  assume  that  Stanton  filled  it  with  bragging  lies  ? 

I  do  not  mean  to  let  this  stand  as  a  mere  question  of  personal  ve 
racity  between  you  and  me,  though  I  have  the  advantage,  which  you 
have  not,  of  knowing  whereof  I  affirm.  But  my  denial  throws  the 
burden  of  proof  upon  you  with  its  full  weight.  Eecollect  also  that 
the  strength  of  your  evidence  must  be  proportioned  to  the  original 
improbability  of  the  fact  you  seek  to  establish,  and  that  the  reasons  a 
priori  for  disbelieving  this  fact  are  overwhelmingly  strong.  All  pre 
sumptions  are  against  the  idea  that  a  man  who  dodged  about  among 
the  abolitionists  as  their  spy,  and  vowed  himself  to  the  secessionists  as 
their  ally,  and  all  the  time  manifested  a  dastardly  dread  of  being  dis 
covered,  would  openly  insult  the  President,  or  do  anything  else  that 
was  bold  and  violent.  But  you  have  taken  the  task  of  proving  it ; 
and  how  have  you  done  it  ? 

I  certainly  need  not  say  that  Mr.  Holt  proves  nothing  by  writing 
a  letter  in  which  he  declines  to  tell  what  he  knows.  His  expressive 
silence,  on  the  contrary,  is  very  convincing  that  he  knew  the  truth  to 
be  against  you.  As  little,  nay  less,  if  less  were  possible,  do  you  make 
out  of  his  speech  at  Charleston.  He  deals  there  in  glittering  generali 
ties,  sonorous  periods,  and  obscure  allusions  to  some  transaction  of 
which  he  gives  no  definite  idea,  except  that  Stanton  was  not  an  actor 
in  it,  but  a  spectator  ;  for  he  mentions  him  only  to  say  that  "  he  looked 
upon  that  scene."  What  the  scene  was  he  declared  to  be  a  secret, 
which  history  will  perhaps  never  get  a  chance  to  record. 

Failing  wholly  to  get  anything  out  of  Mr.  Holt,  you  naturally 
enough  resorted  to  Mr.  Dawes ;  and  Mr.  Dawes,  wifling,  but  unable 
to  help  you,  called  in  the  aid  and  comfort  of  his  wife.  "  She,"  her 
husband  says,  "  distinctly  remembers  hearing  Stanton  tell  at  our  house 
the  story  of  that  terrible  conflict  in  the  Cabinet."  That  is  the  length 

19 


.290  POLITICAL  ESSAYS  AND  LETTERS. 

and  breadth  of  her  testimony.  She  remembers  that  Mr.  Stanton  told 
the  story,  but  not  the  story  itself.  It  was  about  a  terrible  conflict ; 
but  we  do  not  learn  who  were  engaged  in  it,  who  fell,  or  who  was  vic 
torious — how  the  fray  began,  or  how  it  ended — only  it  was  terrible. 
Was  Mr.  Stanton  the  hero  of  his  own  story,  or  was  he  relating  the 
adventures  of  somebody  else  to  amuse  or  frighten  the  company  ?  Mrs. 
Dawes  is  undoubtedly  a  lady  of  the  very  highest  respectability  ;  but, 
with  all  that,  you  will  find  it  hard  to  convert  the  idle  conversations  at 
her  house  into  history ;  and  the  difficulty  is  much  increased  by  the 
fact  that  neither  she  nor  anybody  else  is  able  to  tell  what  they  were. 

The  declaration  of  Mr.  Holt  that  he  would  not  reveal  what  he  knew 
on  this  subject,  and  Mr.  Dawes's  statement  that  Mrs.  Dawes  told  him 
that  she  heard  Stanton  tell  something  about  it  which  she  does  not  re 
peat,  is  all  the  evidence  you  offer  on  the  point.  Yet  you  affirm  that 
this  most  improbable  and  slanderous  story  is  not  only  true,  but  sus 
tained  by  the  "declarations  of  Mr.  Stanton  to  credible  witnesses,  and 
the  positive  averments  of  Joseph  Holt."  Can  this  be  mere  ignorance  ? 
I  am  tempted  to  believe  that  you  have  gone  about  the  business  with  a 
set  purpose  to  make  yourself  ridiculous. 

I  fear  very  much  that  on  this  question,  as  on  so  many  others,  you 
have  been  guilty  of  a  willful  suppressio  veri.  Did  you  not  know  that 
Mr.  Holt's  testimony  would  be  against  you,  when  you  took  advantage 
of  his  scruples  about  giving  it  ?  Did  not  Mrs.  Dawes  recollect  more 
than  you  have  quoted  ?  I  may  be  wrong  in  this  suspicion  ;  but  a  man 
who  mangles  a  public  record  must  not  complain  if  his  good  faith  is 
doubted  when  he  presents  private  evidence. 

Mr.  Attorney-General  Hoar,  believing  this  scandal  to  be  true,  tried 
in  good  faith  to  get  the  evidence  which  would  prove  it.  When  he 
found  it  to  be  false  he  passed  over  to  you  the  letters  which  he  had  got 
in  the  course  of  his  search,  and  you  printed  them.  The  lawyer  was 
too  honest  to  reassert  a  tale  which  he  discovered  to  be  unfounded  ;  but 
the  politician  had  not  magnanimity  enough  to  retract  it ;  and  there 
fore  he  let  you  burn  your  fingers  where  he  would  not  put  his  own. 

The  story  of  a  "  Cabinet  scene,"  as  it  floated  about  among  irre 
sponsible  newsmongers,  seemed  for  a  while  like  a  formidable  slander  ; 
but  you  have  made  it  utterly  contemptible. 

VII.  A  word  before  we  part  about  the  two  hundred  and  fifty  thou 
sand  dollars  raised  out  of  the  Treasury  for  Governor  Morton.  Taking 
your  account  of  that  business  as  correct,  I  proved  in  my  former  letter 
that  it  was  in  the  highest  degree  criminal.  You  left  no  escape  from 
the  conclusion  that  the  parties  were  guilty  of  embezzlement  under  the 
act  of  1846.  Your  narrative  of  the  transaction  impressed  it  with  all 
the  marks  of  what  is  called  in  the  flash  language  of  Washington  "a 
big  steal."  You  showed  that  the  parties  themselves  so  understood  it 
at  the  time,  for  you  put  a  conversation  into  their  mouths  by  which 


POLITICAL  ESSAYS  AND  LETTERS.  291 

they  are  made  to  admit  their  liability  to  prosecution  and  imprison 
ment. 

I  saw  plainly  that  this  could  not  be  true.  Mr.  Stanton's  worst 
enemies  never  charged  him  with  that  kind  of  dishonesty,  and  Governor 
Morton  had  a  reputation  which  placed  him  far  above  the  suspicion  of 
such  baseness.  Both  of  them  may  have  had  serious  faults,  but  they 
would  not  rob  the  Treasury  under  any  circumstances,  or  for  any  pur 
pose.  I  asked  three  members  of  the  Indiana  delegation  whether  there 
was  any  foundation  for  your  assertion  ;  they  all  answered  no,  and  gave 
me  the  explanation  which  I  used  in  my  published  letter. 

Your  replication  to  this  point  is  one  of  the  most  astonishing  parts 
of  all  your  wonderful  production.  I  denied  that  Messrs.  Stan  ton  and 
Morton  had  committed  a  felony,  and  gave  a  version  of  the  affair  which 
showed  them  both  to  be  perfectly  innocent.  You  grow  ill-tempered 
and  vituperative  upon  this,  and  charge  me  with  "unconcealed,  not  to 
say  ostentatious,  malignity."  I  confess  this  is  turning  the  tables  upon 
me  in  a  way  I  could  not  have  expected.  In  general,  the  malignity  is 
presumed  against  the  party  who  makes  an  injurious  charge,  not  against 
him  who  repels  it. 

There  might  have  been  some  hope  for  you  yet  if  you  had  recanted 
your  first  assertion,  or  admitted  the  errors  of  your  statement,  or  made 
some  effort  to  explain  away  the  effect  of  it,  by  showing  that  you  did 
not  mean  what  you  said.  But  you  hold  fast  to  every  word  of  it ;  not 
a  syllable  do  you  retract.  On  the  contrary,  you  insist  that  it  is  ef 
frontery  in  me  to  affirm  that  a  debt  was  due  to  the  State,  and  that  it 
was  paid  according  to  law.  What  you  say  in  your  last,  in  addition  to 
your  first  statement,  makes  the  case  look  worse  than  it  did  before. 
But  it  is  not  true.  The  payment  was  not  made  on  account  of  arms 
furnished  to  loyal  citizens  in  rebellious  States,  nor  was  the  money 
given  to  the  Governor,  to  be  disbursed  by  him  on  his  own  responsibil 
ity,  as  agent  of  the  President.  That  much  I  can  say  on  the  official 
authority  of  the  present  Secretary  of  War,  who  wrote  me  on  the  27th 
of  last  month  that  "  the  transaction  appears  to  be  based  upon  the 
claims  of  the  State  of  Indiana  for  expenses  incurred  in  raising  volun 
teers." 

But  Governor  Morton  is  still  above  ground,  and  can  take  care  of 
himself.  If  he  made  a  raise  out  of  the  public  Treasury  without  au 
thority  of  law,  and  in  defiance  of  the  penal  statutes  in  such  case  made 
and  provided,  he  owes  it  to  you  to  confess  his  guilt  fully  and  freely. 
If  he  is  innocent  (as  I  believe  him  to  be),  it  is  due  to  himself  and  the 
memory  of  Mr.  Stanton  that  he  deny  your  allegations,  and  exhibit  the 
true  state  of  the  facts,  without  delay. 

The  sum  of  the  case,  as  it  now  stands,  is  this  :  Mr.  Stanton  put 
into  the  hands  of  Governor  Morton,  not  a  warrant  as  you  say,  but  a 
requisition,  on  which  the  Governor  got  out  of  the  Treasury  two  hun- 


292  POLITICAL  ESSAYS  AND  LETTERS. 

dred  and  fifty  thousand  dollars.  If  this  requisition  was  based  on  a 
just  claim,  and  drawn  against  a  fund  appropriated  to  the  payment  of 
it,  the  whole  transaction  was  perfectly  honest,  exceedingly  common 
place,  and  precisely  similar  to  other  acts  done  every  day,  before  and 
since,  by  all  the  Secretaries — a  simple  discharge  of  routine  duty,  in 
volving  no  responsibility  whatever,  no  honor,  and  no  blame.  But  it 
suited  your  ideas  to  glorify  Stanton  by  declaring  that  he  took  the  great 
responsibility  of  helping  Mr.  Morton  to  the  money  contrary  to  law, 
against  the  principles  of  common  honesty,  and  in  violation  of  his  oath, 
thereby  exposing  both  himself  and  his  accomplice  to  the  danger  of 
prosecution  and  imprisonment  in  the  penitentiary.  This  was  the 
feather  you  stuck  in  his  cap  ;  for  this  you  think  him  entitled  to  the 
"grateful  admiration  of  his  loyal  countrymen."  I  sought  to  deprive 
him  of  the  decoration  you  bestowed  on  him,  by  showing  that  the  money 
was  paid  according  to  law  on  a  claim  satisfactorily  established,  out  of 
money  regularly  appropriated  to  that  purpose.  I  tried  to  prove  that 
it  was  not  an  embezzlement,  and  that  there  was  nothing  criminal  in 
it.  But  this  took  the  loyalty  out  of  it,  and  left  it  without  any  merit 
in  your  eyes.  Thereupon  you  fly  into  a  passion  and  become  abusive, 
which  shows  that  your  moral  perceptions  are  very  much  distorted,  and 
makes  me  fear,  indeed,  that  you  are  altogether  incorrigible. 

This  paper  has  grown  much  longer  than  I  intended  to  make  it,  and 
I  have  no  space  for  the  exhortations  I  meant  to  give  you  in  conclusion. 
I  leave  you,  therefore,  to  your  own  reflections. 


OPEN  LETTER  TO  GENERAL  GARFIELD. 

To  Hon.  James  A.  Garfield,  Member  of  Congress f ram  Ohio: 

I  HAVE  read  the  speech  you  sent  me.  I  am  astonished  and  shocked. 
As  the  leader  of  your  party,  to  whom  the  candidates  have  specially 
delegated  the  conduct  of  the  pending  campaign,  you  should  have  met 
your  responsibilities  in  a  very  different  way.  I  do  not  presume  to 
lecture  so  distinguished  a  man  upon  his  errors  ;  but  if  I  can  prevent 
you,  even  to  a  small  extent,  from  abusing  the  public  credulity,  it  is 
my  duty  to  try.  Premising  only  my  great  anxiety  to  preserve  the 
fraternal  relations  existing  between  us  for  many  years,  I  follow  the 
Horatian  rule,  and  come  at  once  to  "  the  middle  of  things." 

You  trace  back  the  origin  of  present  parties  to  the  earliest  immi 
grations  at  Plymouth  and  Jamestown,  and  profess  to  find  in  the  op 
posing  doctrines  then  planted,  and  afterward  constantly  cherished  in 
Massachusetts  and  Virginia,  the  germs  of  those  ideas  which  now  make 
Democracy  and  Abolitionism  the  deadly  foes  of  each  other.  The 


POLITICAL  ESSAYS  AND  LETTERS.  293 

ideas  so  planted  in  Massachusetts  were,  according  to  your  account, 
the  freedom  and  equality  of  all  races,  and  the  right  and  duty  of  every 
man  to  exercise  his  private  judgment  in  politics  as  well  as  religion. 
On  the  other  hand,  you  set  forth  as  irreconcilably  hostile  the  doctrine 
of  Virginia,  "  that  capital  should  own  labor,  that  the  negro  had  no 
rights  of  manhood,  and  that  the  white  man  might  buy,  own,  and  sell 
him  and  his  offspring  forever."  Following  these  assertions  with 
others,  and  linking  the  present  with  the  long  past,  you  employ  the 
devices  of  your  rhetoric  to  glorify  the  modern  Abolitionist  and  to 
throw  foul  scorn,  not  merely  on  the  Southern  people,  but  on  the  whole 
Democracy  of  the  country. 

This  looks  learned  and  philosophical,  and  it  gives  your  speech  a 
dignity  seemingly  above  the  reach  of  the  ordinary  demagogue.  Happy 
is  he  who  knows  the  causes  of  things  ;  felicitous  is  the  partisan  mem 
ber  of  Congress  whose  stump-speech  goes  up  the  river  of  time  to  the  first 
fountains  of  good  and  evil.  But  your  contrast  of  historical  facts  is 
open  to  one  objection,  which  I  give  you  in  a  form  as  simple  as  possi 
ble  when  I  say  that  it  is  wholly  destitute  of  truth.  This,  of  course, 
implies  no  imputation  on  your  good  faith.  Your  high  character  in 
the  Church,  as  well  as  the  State,  forbids  the  belief  that  you  would  be 
guilty  of  willful  misrepresentation. 

The  men  of  Massachusetts,  so  far  from  planting  the  right  of  pri 
vate  judgment,  extirpated  and  utterly  extinguished  it,  by  means  so 
cruel  that  no  man  of  common  humanity  can  think  of  them  even  now 
without  disgust  and  indignation.  I  am  surprised  to  find  you  igno 
rant  of  this.  Did  you  never  hear  of  the  frightful  persecutions  they 
carried  on  systematically  against  Baptists,  and  Quakers,  and  Catholics  ? 
— how  they  fined,  imprisoned,  lashed,  mutilated,  enslaved,  and  banished 
everybody  that  claimed  the  right  of  free  thought  ? — how  they  stripped 
the  most  virtuous  and  inoffensive  women,  and  publicly  whipped  them 
on  their  naked  backs,  only  for  expressing  their  conscientious  convic 
tions  ?  Have  you  never,  in  all  your  reading,  met  with  the  story  of 
Roger  Williams  ?  For  merely  suggesting  to  the  public  authorities  of 
the  colony  that  no  person  ought  to  be  punished  on  account  of  his 
honest  opinions,  he  was  driven  into  the  woods  and  pursued  ever  after 
ward  with  a  ferocity  that  put  his  own  life  and  that  of  his  friends  in 
constant  danger.  In  fact,  the  cruelty  of  their  laws  against  the  free 
dom  of  conscience,  and  the  unfeeling  rigor  with  which  they  were  exe 
cuted,  made  Massachusetts  odious  throughout  the  world. 

These  great  crimes  of  the  Pilgrim  Fathers  ought  not  to  be  cast 
up  to  their  children  ;  for  some  of  their  descendants  (I  hope  a  good 
majority)  are  high-principled  and  honest  men,  sincerely  attached  to 
the  liberal  institutions  planted  in  the  more  southern  latitudes  of  the 
continent.  But  if  you  are  right  in  your  assertion  that  the  Abolition 
ists  derive  their  principles  from  the  ideas  entertained  and  planted  at 


294:  POLITICAL  ESSAYS  AND  LETTERS. 

Plymouth,  that  may  account  for  the  coarse  and  brutal  tyranny  with 
which  your  party  has,  in  recent  times,  trampled  upon  the  rights  of 
free  thought  and  free  speech. 

Nor  are  you  more  accurate  in  your  declaration  that  the  old  Yankees 
planted  the  doctrine  of  freedom  and  equality,  or  opposed  the  domina 
tion  of  one  race  over  another.  Messrs.  Palfrey  and  Sumner  have  said 
something  to  the  effect  that  slavery  never  existed  in  Massachusetts, 
and  you  may  have  been  misled  by  them.  But  either  they  were  wholly 
ignorant  of  the  subject,  or  else  they  spoke  with  that  loose  and  lavish 
un veracity  which  is  a  common  fault  among  men  of  their  political  sect. 
The  Plymouth  colony  and  the  province  of  Massachusetts  Bay  were 
pro-slavery  to  the  backbone.  If  you  doubt  this,  I  refer  you  to  Moore's 
"  History  of  Slavery  in  Massachusetts,"  where  the  evidence  (consist 
ing  chiefly  of  records  and  documents  perfectly  authenticated)  is  pro 
duced  and  collated  with  a  fullness  and  fairness  which  can  not  be  ques 
tioned.  The  Plymouth  immigrants  planted  precisely  the  doctrine 
which  you  ascribe  to  the  Jamestown  colonists — that  is  to  say,  they 
held  "  that  the  negro  had  no  rights  of  manhood  ;  that  the  white  man 
might  buy,  own,  and  sell  him  and  his  offspring  forever."  Practically 
and  theoretically,  they  maintained  that  human  slavery,  in  its  most  un 
mitigated  form,  was  a  perfectly  just,  proper,  and  desirable  institution, 
entirely  consistent  with  Christianity  as  they  understood  it,  and  founded 
on  principles  of  universal  jurisprudence.  They  insisted  upon  it  as  an 
established  and  settled  rule  of  the  law  of  nations  that  when  one  govern 
ment  or  community  or  political  organization  made  war  upon  its  own 
subjects,  or  the  subjects  of  another,  and  vanquished  them,  the  people 
of  the  beaten  party  had  no  rights  to  which  the  right  of  the  conquerors 
was  not  paramount.  Whenever  it  was  demonstrated,  by  actual  experi 
ment,  that  any  people  were  too  weak  to  defend  their  homes  and  fami 
lies  against  an  invader  who  visited  them  with  fire  and  sword,  they 
might  lawfully  be  stripped  of  their  property,  and  they  themselves, 
their  wives,  and  their  children  might  justly  be  held  as  slaves  or  sold 
into  perpetual  bondage.  That  was  the  idea  they  planted  in  their  own 
soil,  propagated  among  their  contemporaries,  and  transmitted  to  the 
Abolition  party  of  the  present  day.  You  have  preached  and  practiced 
it  in  all  your  dealings  with  the  South.  This  absolute  domination  is 
what  you  mean,  if  you  mean  anything,  when  you  talk  about  the 
"precious  results  of  the  war."  If  the  doctrine  thus  planted  by  the 
original  settlers  in  Massachusetts  be  true,  and  if  the  "  precious  fruits  " 
of  it,  which  you  are  gathering  with  so  much  industry,  be  legitimate, 
it  is  a  perfect  justification  of  all  the  slavery  that  ever  existed  on  this 
continent.  Your  great  exemplars,  from  whom  you  acknowledge  that 
you  have  derived  your  ideas  of  freedom,  certainly  thought,  or  professed 
to  think,  so,  and  they  carried  it  out  to  its  logical  consequences.  When 
an  African  potentate  chose  to  fight  with  and  subdue  a  weak  tribe, 


POLITICAL  ESSAYS  AND  LETTERS.  295 

inside  or  out  of  his  own  dominions,  he  sold  the  prisoners  whom  he  did 
not  think  proper  to  kill,  and  the  men  of  Massachusetts  bought  them 
without  a  question  of  his  title.  They  kept  them  and  worked  them  to 
death,  or  sold  them  again,  as  their  interest  prompted  ;  for  they  held 
that  the  right  of  domination,  resulting  from  the  application  of  brute 
force,  was  good  in  the  hands  of  all  subsequent  purchasers,  however 
remote  from  the  original  conquisitor. 

They  executed  this  theory  to  its  fullest  extent  in  their  own  wars 
with  the  Indians.  Without  cause  or  provocation,  and  without  notice 
or  warning,  they  fell  upon  the  Pequods,  massacred  many  of  them,  and 
made  slaves  of  the  survivors,  without  distinction  of  age  or  sex.  About 
seven  hundred,  including  many  women  and  children,  were  sent  to  the 
West  Indies,  and  there  sold  on  public  account,  the  proceeds  being  put 
into  the  colonial  treasury.  Eight  score  of  these  unfortunate  people 
escaped  from  the  butchery  by  flight,  and  afterward  agreed  to  give 
themselves  up  on  a  solemn  promise  of  the  authorities  that  they  should 
neither  be  put  to  death  nor  enslaved.  The  promise  was  broken  with 
as  little  remorse  as  a  modern  Abolitionist  would  violate  his  oath  to 
support  the  Constitution.  The  "precious  results  of  the  war"  were 
not  to  be  lost  by  an  honest  observance  of  their  pledged  faith,  and  the 
victims  of  this  infamous  treachery  were  all  of  them  shipped  to  the 
Barbadoes,  and  sold  or  "swapped  for  Blackamoors."  This  practice 
of  enslaving  their  captives  was  uniform,  covered  all  cases,  and  included 
women  and  children  as  well  as  fighting  men.  When  death  put  King 
Philip  beyond  their  reach,  they  sent  his  wife  and  child  with  the  rest 
to  be  sold  into  slavery.  The  Indians  made  bad  slaves.  They  were 
hard  to  tame,  they  escaped  to  the  forest,  and  had  to  be  hunted  down, 
brought  back  and  branded.  They  never  ceased  to  be  sullen  and  dis 
obedient.  The  Africans  always,  on  the  contrary,  "accepted  the  situ 
ation,"  were  easily  domesticated,  and  bore  the  yoke  without  murmur 
ing.  For  that  reason  it  became  a  settled  rule  of  public  and  private 
economy  in  Massachusetts  to  exchange  their  worthless  Indians  for 
valuable  negroes,  cheating  their  West  India  customers  in  every  trade. 
Perhaps  it  was  here  that  your  party  got  the  germ  of  its  honesty  as  well 
as  its  humanity.  They  made  war  for  no  other  object  than  to  supply 
themselves  with  subjects  for  this  fraudulent  traffic.  In  1643  Emanuel 
Downing,  the  foremost  lawyer  in  the  colony,  and  a  leader  of  command 
ing  influence,  as  well  as  high  connections,  made  a  written  argument 
in  favor  of  a  war  with  the  Narragan setts.  He  did  not  pretend  that 
any  wrong  had  been  done  ;  but  he  had  a  pious  dread  that  Massachu 
setts  would  be  held  responsible  for  the  false  religion  of  the  Narragan- 
setts.  "I  doubt,"  says  he,  "if  it  be  not  synne  in  us,  having  power 
in  our  hands,  to  suifer  them  to  maynteyne  the  worship  of  the  devil 
which  their  powwowes  often  doe."  This  tenderness  of  conscience  for 
the  sins  of  other  people  is  very  characteristic  of  the  party  which  got 


296  POLITICAL  ESSAYS  AND  LETTERS. 

the  "  germ  of  its  ideas  "  from  that  source.  But  go  a  little  further,  and 
you  will  see  with  pleasure  how  exactly  you  have  copied  their  doctrines. 
This  is  the  way  Mr.  Downing  applies  the  motive  power  :  "If,"  says 
he,  "  upon  a  just  war,  the  Lord  should  deliver  them  into  our  hand, 
wee  might  easily  have  men,  women,  and  children  enough  to  exchange 
for  Moors  [negroes],  which  will  be  more  gaynefull  pilladge  for  us  than 
wee  conceive  ;  for  I  do  not  see  how  wee  can  thrive  untill  we  get  into  a 
stock  of  slaves  sufficient  to  do  all  our  business."  This  (except  the 
spelling)  might  come  from  an  abolition  caucus  to-day.  You  will  find 
Downing's  letter  in  Moore,  page  10. 

They  did  get  most  of  their  Indians  off,  and  supplied  themselves 
with  negroes  in  their  place.  The  shameless  inhumanity  with  which 
the  blacks  were  used  made  slavery  in  Massachusetts  "the  sum  of  all 
villainy."  In  the  letter  of  Downing,  already  referred  to,  he  says  : 
"  You  know  very  well  wee  shall  mayntayne  twenty  Moores  cheaper  than 
one  Englishe  servant."  Think  of  reducing  a  West  India  negro  in  that 
intensely  cold  climate  to  the  one  twentieth  part  of  the  food  and  cloth 
ing  which  a  white  menial  was  in  the  habit  of  getting.  They  must 
have  been  frozen  and  starved  to  death  in  great  numbers.  When  that 
happened  it  was  but  the  loss  of  an  animal.  The  harboring  of  a  slave 
woman  was,  in  1646,  pronounced  by  the  highest  authority  to  be  the 
same  injury  as  the  unlawful  detention  of  a  least.  In  1716  Sewell,  the 
Chief-Justice  of  the  colony,  said  that  negroes  were  rated  with  horses 
and  hogs.  Dr.  Belknap  tells  us  that  afterward,  when  the  stock  en 
larged  and  the  market  became  dull,  young  negroes  and  mulattoes  were 
sometimes  given  away  like  puppies.  This  is  the  kind  of  freedom,  this 
the  equality  of  the  races,  which  you  learned  from  the  ancient  colo 
nists. 

But  they  taught  you  more  than  that.  Their  precept  and  example 
established  the  slavery  of  white  persons  as  well  as  Indians  and  negroes. 
As  their  remorseless  tyranny  spared  no  age  and  no  sex,  so  it  made  no 
distinction  of  color.  Besides  the  cargoes  of  white  heretics  which  were 
captured  and  shipped  to  them  by  their  brethren  in  England,  they  took 
special  delight  in  fastening  their  yoke  on  all  who  were  suspected  of 
heterodoxy.  One  instance  is  worthy  of  special  attention.  Lawrence 
Southwick  and  his  wife  were  Quakers,  and  accused  at  the  same  time 
with  many  others  of  attending  Quaker  meetings,  or  "syding  with 
Quakers"  and  "absenting  themselves  from  the  publick  ordinances." 
The  Southwicks  had  previously  suffered  so  much  in  their  persons  and 
estates  from  this  kind  of  persecution,  that  they  could  no  longer  work 
or  pay  any  more  fines,  and,  therefore,  the  general  court,  by  solemn 
resolution,  ordered  them  to  be  banished  on  pain  of  death.  Banish 
ment,  you  will  not  fail  to  notice,  was,  in  itself,  equivalent  to  a  linger 
ing  death,  if  the  parties  were  poor  and  feeble ;  for  it  meant  merely 
driving  them  into  the  wilderness  to  starve  with  hunger  and  cold. 


POLITICAL  ESSA  YS  AND  LETTERS.  297 

Southwick  and  his  wife  went  out  and  died  very  soon.  But  that  is  not 
all.  This  unfortunate  pair  had  two  children,  a  boy  and  a  girl  (Daniel 
and  Provided),  who,  having  healthy  constitutions,  would  bring  a  good 
price  in  the  slave-market.  These  children  were  taken  from  the  par 
ents  and  ordered  to  be  sold  in  the  West  Indies.  It  happened,  how 
ever,  that  there  was  not  a  shipmaster  in  any  port  of  the  colony  who 
would  consent  to  become  the  agent  of  their  exportation  and  sale.  The 
authorities,  being  thus  balked  in  their  views  of  the  main  chance,  were 
fain  to  be  satisfied  in  another  way  ;  they  ordered  the  girl  to  be  whipped ; 
she  was  lashed  accordingly,  in  company  with  several  other  Quaker 
ladies,  and  then  committed  to  prison,  to  be  further  proceeded  with. 
History  loses  sight  of  her  there.  No  record  shows  whether  they  killed 
her  or  not. 

This  is  one  case  out  of  a  great  many.  It  is  very  interesting  and 
instructive  when  taken  in  connection  with  your  speech  ;  for  it  shows 
the  "germ  of  the  idea"  which  your  party  acted  on  when  it  kidnapped 
and  imprisoned  men  and  women  by  the  thousands  for  believing  in 
American  liberty  as  guaranteed  by  the  Constitution.  The  Quakers 
and  Baptists  had  no  printed  organs  in  that  day  through  which  their 
private  judgment  could  be  expressed  ;  else  you  would  no  doubt  have 
cases  directly  in  point  to  justify  your  forcible  suppression  of  two  hun 
dred  and  fifty  newspapers. 

Enmity  to  the  right  of  private  judgment  comes  down  to  the  party 
of  Plymouth  ideas  by  consistent  and  regular  succession.  It  is  woven 
like  a  dirty  stripe  into  the  whole  warp  and  woof  of  their  history.  As 
soon  as  they  got  possession  of  the  Federal  Government,  under  John 
Adams,  they  began  to  use  it  as  an  engine  for  the  suppression  of  free 
thought.  Their  alien  law  gave  the  President  power  to  banish  or  im 
prison  without  trial  any  foreigner  whose  opinions  might  be  obnoxious 
to  his  supporters.  Their  sedition  law  put  every  Democratic  speaker 
and  writer  under  the  heel  of  the  Administration.  Their  standing 
army  was  used,  as  it  now  is,  to  crush  out  their  political  opponents.  If 
you  come  into  Eastern  Pennsylvania,  and  particularly  into  the  good 
county  of  Berks,  you  will  learn  that  the  people  there  still  think  with 
indignation  of  that  old  reign  of  terror  when  Federal  dragoons  kid 
napped,  insulted,  and  beat  their  fathers,  chopped  down  their  "liberty- 
poles,"  broke  to  pieces  the  press  of  the  "Beading  Eagle,"  and  whipped 
its  venerated  editor  in  the  market-house.  The  same  spirit  broke  out 
again  in  the  burning  of  nunneries  and  churches  under  Maria  Monk, 
and  under  John  Brown  the  whole  country  swarmed  with  spies  and 
kidnappers.  When  you  abandoned  the  harlot  and  rallied  to  the  stand 
ard  of  the  thief,  you  changed  your  leader  without  changing  your  prin 
ciples. 

The  slave  code  planted  in  Massachusetts  was  the  earliest  in  America 
and  the  most  cruel  in  all  its  provisions.  It  was  pertinaciously  adhered 


298  POLITICAL  ESSA  YS  AND  LETTERS. 

to  for  generations,  and  never  repented  of,  or  formally  repealed.  It 
was  gradually  abandoned,  not  because  it  was  wrong,  but  solely  because 
it  was  found,  after  long  experiment,  to  be  unprofitable.  Their  plan 
of  keeping  twenty  negroes  as  cheaply  as  one  white  servant  did  not  work 
well ;  for  in  that  climate  a  negro  thus  used  would  infallibly  die  before 
his  labor  paid  what  he  cost.  They  sold  their  stock  whenever  they 
could,  but  emancipation  was  forbidden  by  law,  unless  the  owner  gave 
security  to  maintain  the  slave  and  prevent  him  from  becoming  a  pub 
lic  charge.  To  evade  this  law,  those  who  had  old  or.  infirm  negroes 
encouraged  them  to  bring  suits  for  their  freedom,  and  then  by  sham 
demurrers,  or  other  collusive  arrangements,  got  judgments  against 
themselves  that  the  negroes  were  free,  and  always  had  been.  Females 
likely  to  increase  the  stock  were  advertised  to  be  sold,  "for  that  fault 
alone."  Young  ones,  because  they  were  not  worth  raising,  were  given 
away  like  puppies  of  a  superabundant  litter.  In  this  way  domestic 
slavery  by  degrees  got  loose  in  practice,  simply  because  it  would  not 
pay ;  but  the  principle,  on  which  one  man  may  own  another  whom  he 
subdues  by  superior  strength  or  cunning,  was  never  abandoned,  re 
pudiated,  or  denied.  That  principle  was  cherished,  preserved,  and 
transmitted  to  you,  their  imitative  and  loving  disciples,  and  you  have 
applied  it  wherever  you  could  as  tyrannically  as  they  did. 

You  say  that  "war  without  an  idea  is  simple  brutality."  I  sub 
mit  to  your  judgment,  as  a  Christian  man,  whether  war  is  redeemed 
of  its  brutality  by  such  ideas  as  you  and  your  political  associates  en 
tertain  of  its  purposes,  objects,  and  consequences.  In  all  your  acts 
and  measures,  and  by  all  your  speeches  and  discussions,  you  express  the 
idea  that  the  logic  of  blows  proves  everything  you  choose  to  assert ; 
that  a  successful  invasion  of  one  people  by  another  has  the  effect  of 
destroying  all  natural  right  to,  and  all  legal  guarantees  for,  the  life, 
liberty,  and  property  of  the  people  so  invaded  and  conquered  ;  that 
after  a  trial  by  battle  the  victor  may  enter  up  and  execute  what  judg 
ment  he  pleases  against  his  adversary ;  that  the  crime  which  a  weak 
community  are  guilty  of,  when  they  attempt  to  defend  their  lives, 
their  property,  and  their  families  against  invaders  who  come  upon  them 
to  kill,  destroy,  and  subjugate  them,  is  so  unpardonable  that  the  whole 
body  of  the  offenders,  taken  collectively,  and  all  individuals  who  par 
take  even  passively  of  the  sin,  may  justly  be  devoted  to  death  or  such 
other  punishment,  by  wholesale  or  retail,  as  the  strong  power  shall  see 
proper  to  inflict ;  that  the  conqueror,  after  the  war  is  over,  may  insist 
that  the  helpless  and  unarmed  people,  whom  he  has  prostrated,  shall 
assist  him  by  not  merely  accepting,  but  "  adopting  "  (I  use  your  own 
word)  the  measures  intended  to  degrade  and  rob  them,  and  thus  make 
himself  master  of  their  souls  as  well  as  their  bodies.  All  rights  of 
men  are  resolved  by  this  theory  into  the  mights  of  men. 

I  aver  that  this  doctrine,  in  all  its  length  and  breadth,  is  false  and 


POLITICAL  ESSA  YS  AND  LETTERS. 

pernicious.  It  is  the  foundation  on  which  all  slavery  rests,  and  the 
excuse  for  all  forms  of  tyranny.  It  has  no  support  in  any  sound  rule 
of  public  law,  and  has  never  been  acknowledged  by  wise  or  virtuous 
governments  in  any  age  since  the  advent  of  Christ.  You  can  find  no 
authority  for  it,  except  in  the  examples  of  men  whose  names  are  given 
over  to  universal  execration.  Mohammed  asserted  it  when  he  forced 
his  religion  upon  the  subjugated  East,  when  churches  were  violently 
converted  into  mosques,  and  the  emblem  of  Christianity  was  trampled 
under  foot,  to  be  replaced  by  the  badge  of  the  impostor.  On  the  same 
principle  Poland  was  partitioned,  and  Ireland  plundered  a  dozen  times. 
The  King  of  Dahomey  acted  upon  it  when  he  sold  his  captives,  and 
the  men  of  Massachusetts  indorsed  it  when  they  took  them  in  ex 
change  for  captives  of  their  own.  You  and  your  confreres  adopted  it 
as  a  part  of  your  political  creed  when,  after  the  Southern  people  were 
thoroughly  subdued,  you  denied  them  all  the  rights  of  freemen,  tore 
up  their  society,  abrogated  all  laws  which  could  protect  them  in  per 
son  or  property,  broke  their  local  governments  in  pieces,  and  put  them 
under  the  domination  of  notorious  thieves,  whom  you  forced  them  to 
accept  as  their  absolute  masters. 

These  results  of  the  war  are  no  doubt  very  precious.  The  right  to 
traffic  in  the  flesh  of  Indians  and  negroes  was  precious  to  the  Yankees 
and  the  King  of  Dahomey.  That  was  the  fruit  of  their  wars.  But 
was  it  in  either  case  legitimate  ?  Your  great  reverence  for  the  found 
ers  of  your  political  school  in  Massachusetts,  to  say  nothing  of  your 
respect  for  the  authority  of  the  African  princes,  or  your  faith  in  the 
Koran,  will  probably  impel  you  to  stand  up  in  favor  of  the  "  ideas  " 
which  you  have  learned  from  them.  But  I  think  I  can  maintain  the 
Christian  law  of  liberty  in  opposition  to  all  your  Mussulman  notions  ; 
for  God  is  great,  and  Mohammed  is  not  his  prophet. 

It  would  be  very  unjust  to  deny  that  a  great  many  men,  from  the 
earliest  period  of  our  history,  were  sincerely  opposed  to  African  slavery, 
from  motives  of  religion,  benevolence,  and  humanity.  This  sentiment 
was  strong  in  the  South,  as  well  as  the  North,  and  by  none  was  it 
expressed  with  more  fervor  than  by  Jefferson  himself,  the  great  apostle 
of  Democracy.  But  this  concession  can  hardly  be  made  to  the  politi 
cal  abolitionists.  As  an  almost  universal  rule,  the  leaders  of  that 
sect  were  ribald  infidels,  and  their  conventicles  teemed  with  the  most 
shocking  blasphemy.  They  were,  by  their  own  avowals,  the  most 
cruel  barbarians  of  any  age.  •  Servile  insurrection  and  a  general  butch 
ery  of  the  Southern  people  were  a  part  of  tneir  programme  from  the 
beginning.  The  leaders  to  whom  they  gave  their  highest  admiration 
were  the  men  whose  feet  were  the  swiftest  in  running  to  shed  inno 
cent  blood.  Seward  won  their  affections  in  his  early  manhood  by  pro 
posing  measures  from  which  civil  war  would  be  sure  to  come,  and  in 
which  he  promised  that  negroes  should  be  incited  to  "  rise  in  blackest 


300  POLITICAL  ESSA  YS  AND  LETTERS. 

insurrection."  They  applauded  John  Brown  to  the  echo  for  a  series 
of  the  basest  murders  on  record.  They  did  not  conceal  their  hostil 
ity  to  the  Federal  and  State  governments,  nor  deny  their  enmity  to 
all  laws  which  protected  the  liberties  of  white  men.  The  Constitution 
stood  in  their  way,  and  they  cursed  it  bitterly;  the  Bible  was  quoted 
against  them,  and  they  reviled  God  the  Almighty  himself.  I  know 
that  the  mind  of  man,  like  his  body,  is  fearfully  and  wonderfully  made  ; 
I  understand  all  the  difficulty  of  analyzing  human  passions  ;  and  I  ad 
mit  that  we  should  not  judge  harshly  of  motives  :  but  how  these 
heartless  oppressors  of  their  own  race  could  have  any  care  for  the 
freedom  of  the  negro  passes  my  comprehension.  Unless  you  can  ex 
plain  it  otherwise,  the  judgment  of  history  must  inevitably  be  against 
the  sincerity  of  their  anti-slavery  professions.  In  the  present  aspect 
of  the  case,  it  seems  impossible  to  believe  that  love  of  the  negro  was 
not  assumed  as  a  mere  excuse  for  enslaving  the  white  race,  just  as  their 
ancestors  put  on  the  pretense  of  piety  to  gratify  their  appetite  for  the 
property  and  blood  of  better  people  than  themselves.  You  must  posi 
tively  reconsider  this  subject  before  you  undertake  again  to  present 
the  abolitionists  to  the  world  in  the  respectable  character  of  fanatics. 
I  think  you  will  find  that  the  crew  of  the  Mayflower  brought  over  and 
planted  no  "germ  of  an  idea"  which  has  flourished  with  more  vigor 
than  their  canting  hypocrisy. 

Here  let  me  say  again  that  the  vices  and  wickedness  of  the  Ply 
mouth  colonists  are  not  to  be  visited  on  the  heads  of  their  children, 
according  to  the  flesh.  Among  them,  in  every  part  of  the  country, 
are  great  statesmen,  brave  soldiers,  true  servants  of  the  Church,  and 
virtuous,  patriotic  Democrats,  who  are  no  more  responsible  for  the 
crimes  of  their  ancestors  than  a  peaceable  Scotchman  is  for  the  raids 
and  robberies  which  in  past  generations  were  committed  by  his  clan 
upon  the  English  border.  But  you  acknowledge  that  you  get  your 
political  ideas  from  them  ;  you  boast  that  your  party  has  no  doctrines 
of  public  law,  and  no  notions  of  public  duty,  which  were  not  planted 
at  Plymouth.  Therefore  it  is  not  only  proper,  but  necessary,  to  show 
what  those  doctrines  and  ideas  were. 

I  pass  now  to  a  later  period.  You  say  that  there  were  two  radi 
cally  different  theories  about  the  nature  of  our  government — "the 
North  believing  and  holding  that  we  were  a  nation,  the  South  insist 
ing  that  we  were  only  a  confederation  of  sovereign  States."  It  is  not 
true  that  any  such  theoretical  conflict  ever  existed  between  the  sec 
tions.  That  the  Articles  of  Confederation  first,  and  the  Constitution 
afterward,  united  the  States  together  for  certain  purposes  therein 
enumerated,  and  thus  made  us  a  nation  among  nations,  was  never  de 
nied  that  I  know  of  by  any  party.  But  this  national  character  was 
given  to  the  General  Government  by  sovereign  States  who  confeder 
ated  together  for  that  purpose.  They  bestowed  certain  powers  on  the 


POLITICAL  ESSA  YS  AND  LETTERS.  301 

new  political  corporation  then  created,  and  called  it  the  United  States 
of  America,  and  they  expressly  reserved  to  themselves  all  the  sover 
eign  rights  not  granted  in  the  charter.  Democratic  statesmen  had  no 
theory  about  it.  They  saw  their  duty  written  down  in  the  funda 
mental  law  ;  they  swore  to  perform  it,  and  they  kept  their  oaths. 
They  executed  the  powers  of  the  General  Government  in  their  whole 
constitutional  vigor — for  that,  as  Mr.  Jefferson  said,  was  "  the  sheet- 
anchor  of  our  peace  at  home  and  our  safety  abroad" — and  they 
carefully  guarded  the  rights  of  the  States  as  the  only  security  we 
could  have  for  a  just  administration  of  our  domestic  affairs.  This 
was  universally  assented  to  as  right  and  true.  No  counter  theory  was 
set  up.  Difference  of  construction  there  might  be,  but  all  admitted 
that  when  the  line  of  power  was  accurately  drawn  between  the  Federal 
Government  and  State  sovereignty,  the  rights  on  one  side  were  as  sa 
cred  as  those  on  the  other.  But  within  two  or  three  years  last  past  the 
low  demagogues  of  your  party  have  got  to  putting  in  their  platforms 
the  assertion  that  this  is  a  nation  and  not  a  confederation.  What  do 
they  mean  ?  What  do  you  mean  when  you  indorse  and  reproduce  it  ? 
Do  you  deny  that  the  States  were  sovereign  before  they  united  ?  Do 
you  affirm  that  their  sovereignty  was  wholly  merged  in  the  Federal 
Government  when  they  assented  to  the  Constitution  ?  Is  the  tenth 
amendment  a  mere  delusion  ?  Do  you  mean  to  assert  that  the  States 
have  not  now,  and  never  had,  any  rights  at  all  except  what  are  conced 
ed  to  them  by  the  mercy  of  the  "nation  "  ?  No  doubt  this  new  article 
was  inserted  in  the  creed  of  the  abolitionists  because  they  supposed  it 
would  give  a  sort  of  plausibility  to  their  violent  intervention  with  the 
internal  affairs  of  the  States.  But  it  is  so  false,  so  shallow,  and  so  des 
titute  of  all  respectable  authority,  that  it  imposes  upon  nobody. 

As  a  part  of  this  conflict  of  theories,  and  resulting  from  it,  you 
describe  the  South  as  "insisting  that  each  State  had  a  right,  at  its 
own  discretion,  to  break  the  Union,  and  constantly  threatening  seces 
sion,  where  the  full  rights  of  slavery  were  not  acknowledged."  In 
fact  and  in  truth,  secession,  like  slavery,  was  first  planted  in  New  Eng 
land.  There  it  grew  and  flourished,  and  spread  its  branches  far  over 
the  land,  long  before  it  was  thought  of  in  the  South,  and  long  before 
"  the  full  rights  of  slavery"  were  called  in  question  by  anybody.  The 
anti-democrats  of  that  region,  in  former  as  well  as  in  later  times, 
totally  misunderstood  the  purposes  for  which  this  government  was 
made. 

They  regarded  it  as  a  mere  commercial  machine,  by  which  they 
could  make  much  "gaynefull  pilladge,"  if  allowed  to  run  it  their  own 
way.  When  they  were  disappointed  in  this  by  certain  perfectly  just 
and  constitutional  regulations  of  their  trade,  which  the  common  de 
fense  and  general  welfare  made  necessary,  they  immediately  fell  to 
plotting  the  dismemberment  of  the  Union.  Before  1807  they  organ- 


302  POLITICAL  ESSAYS  AND  LETTERS. 

ized  a  conspiracy  with  the  British  authorities  in  Canada  for  the  erec 
tion  of  New  England  into  a  separate  republic  under  British  protection. 
(See  Carey's  "  Olive  Branch"  and  the  Henry  correspondence. )  Not 
long  afterward  Josiah  Quincy,  whose  fidelity  to  the  party  which  elected 
him  was  never  doubted,  formally  announced  in  Congress  the  intention 
of  his  State  to  leave  the  Union,  "peaceably  if  she  could,  forcibly  if 
she  must."  Their  hatred  of  the  Union  deepened,  and  their  determi 
nation  to  break  it  up  grew  fiercer,  as  the  resolution  of  the  Democrats 
to  maintain  the  independence  of  the  country  became  stronger.  When 
the  war  of  1812  began,  they  were  virtually  out  of  the  Union,  and 
remained  out  during  the  whole  of  that  desperate  struggle,  not  only 
refusing  all  assistance  to  carry  it  on,  but  helping  the  enemy  in  every 
possible  way.  It  was  while  England  had  her  tightest  grasp  on  the 
throat  of  the  nation,  that  the  Hartford  convention  was  called  to  dis 
member  it ;  and  this,  Mr.  Jefferson  says,  they  would  have  accom 
plished  but  for  the  battle  of  New  Orleans  and  the  Peace  of  Ghent. 
John  Quincy  Adams  in  1839,  and  Abraham  Lincoln  in  1847,  made 
elaborate  arguments  in  favor  of  the  legal  right  of  a  State  to  go  out. 
The  later  abolitionists  did  not  attempt  to  conceal  their  rancorous 
hostility  to  the  Union.  " No  union  with  slave-holders"  was  one  of 
their  watch-words,  and,  down  to  the  opening  of  the  war,  its  destruc 
tion  was  the  avowed  object  of  their  machinations. 

There  is  one  conclusive  proof  of  your  enmity  to  the  Union,  and 
that  is  your  unwavering  opposition  to  the  Constitution  which  held  the 
States  together.  You  know  as  well  as  I  do  how  absurd  it  is  to  suppose 
that  any  man  or  party  can  support  the  Union,  and  at  the  same  time 
trample  on  the  Constitution  ;  and  you  certainly  are  not  ignorant  that 
you  and  your  predecessors,  from  the  earliest  times,  have  been  anti- 
constitutional  in  all  your  proclivities.  Contemptuous  disregard  of  con 
stitutional  obligations  is  not  now  the  mere  germ  of  a  doctrine  ;  it  is  a 
part  of  your  settled  creed.  Before  the  war  and  since,  you  have  trod 
den  under  foot  every  provision  contained  in  the  great  charter  of  our 
liberties.  I  do  not  speak  at  random.  I  challenge  you  to  designate  a 
single  constitutional  right  of  the  States,  or  of  individuals,  which  you 
have  not  at  some  time,  or  in  some  way,  deliberately  violated. 

This  contempt  for  the  Constitution,  this  practical  denial  that  an 
oath  to  support  it  is  sacred,  implies  a  disregard  of  all  laws,  human 
and  divine,  and,  when  adopted,  it  left  nothing  to  guide  you  except  the 
propensities,  evil  or  good,  of  your  natural  hearts.  Many  of  you  (and 
notably  you  yourself)  contracted  no  individual  guilt,  because  you  were 
too  proud  for  petty  larceny,  too  benevolent  for  large-handed  robbery^ 
and  too  full  of  kindness  to  break  wantonly  into  the  tabernacle  of  hu 
man  life.  But  generally  the  moral  principles  of  the  ultra-abolitionists 
(if  they  ever  had  any)  became  so  wholly  perverted,  that  they  saw  noth 
ing  wrong  in  the  worst  offenses  that  could  be  committed  against  their 


POLITICAL  ESSAYS  AND  LETTERS.  303 

political  opponents.  In  their  eyes,  theft  and  murder  not  only  lost 
their  felonious  character,  but  became  meritorious,  if  the  victims  lived 
south  of  Mason  and  Dixon's  line.  When  John  Brown  stole  horses  in 
the  peace  of  God  and  the  State  of  Missouri,  he  was  taking  lawful 
booty ;  when  he  sneaked  into  a  quiet  Virginia  village  on  a  Sunday 
night  and  assassinated  defenseless  citizens,  he  was  a  hero  ;  and  when 
he  died  a  felon's  death  on  the  scaffold,  to  which  he  was  justly  con 
demned,  he  became  a  martyr. 

You  persist  in  misunderstanding  the  ante-bellum  attitude  of  the 
Northern  Democracy.  We  stood  steadfastly  by  the  Union  against  all 
attempts  of  the  New  England  party  to  break  it  up  by  secession.  We 
sustained  the  Constitution  against  the  ferocious  assaults  of  the  aboli 
tionists  ;  we  labored  earnestly  to  save  republican  institutions  from  the 
destruction  with  which  they  were  threatened  by  you  ;  and  as  long  as 
the  Southern  people  acted  with  us,  we  gratefully  accepted  their  aid  in 
the  good  work. 

Your  averment  that  the  Democratic  party  desired  the  aggrandize 
ment  of  slavery,  and  l '  yielded  their  consciences  "  on  that  subject  to 
the  South,  is  grossly  unjust,  if  you  mean  to  charge  them  with  any 
thing  more  than  a  willingness  to  protect  the  Southern  as  well  as  the 
Northern  and  Middle  States  in  the  exercise  of  their  constitutional 
rights.  We  had  disposed  of  slavery  within  our  own  jurisdiction  ac 
cording  to  our  sense  of  sound  policy  and  justice.  But  we  had  made 
an  express  compact  with  the  other  States  to  leave  the  entire  control  of 
their  domestic  affairs  to  themselves.  We  kept  our  covenant,  simply 
because  it  would  have  been  gross  dishonesty  to  break  it.  The  aboli 
tionists  took  a  different  view,  and  refused  to  keep  faith.  They  swore 
as  solemnly  as  we  did  to  observe  the  terms  of  the  bargain  ;  but  accord 
ing  to  their  code  it  was  a  sin  not  to  violate  it.  The  fact  is  true  that 
we  did  not  think  it  right  to  cut  the  throats,  or  shoot,  or  strangle  the 
men  or  women  of  the  South  for  believing  in  negro  slavery  ;  but  that 
is  no  justification  of  your  assertion  that  we  yielded  our  consciences  to 
them. 

Again  :  You  charge  us  (the  Northern  Democracy)  with  having 
given  bad  advice  to  the  Southern  people.  This  consisted,  you  say, 
in  assuring  them  that,  if  they  seceded,  we  would  take  their  part  against 
any  attempt  to  force  them  back  again  into  the  Union.  This  is  a  gross 
error,  and  you  will  see  it  when  I  recall  your  attention  to  the  facts.  In 
all  our  exhortations  to  Southern  men  against  secession  we  were  met 
by  the  expression  of  their  fear  that  the  abolitionists  intended,  in  any 
event,  to  invade  and  slaughter  them.  Some  reason  for  this  apprehen 
sion  was  given  by  the  fierce  threats  of  your  leading  men,  and  espe 
cially  by  your  almost  universal  admiration  of  Brown  for  his  raid  into 
Virginia.  Certain  Democrats  (and  very  good  men  too)  did  then  de 
clare  that  a  lawless  expedition  intended  for  purposes  of  mere  murder 


304  POLITICAL  ESSAYS  AND  LETTERS. 

and  pillage  could  not  and  should  not  be  started  in  the  North  without 
such  opposition  as  would  effectually  stop  it.  But  this  -was  before 
secession,  and  it  was  intended  to  prevent  that  movement,  not  to 
encourage  it. 

You  can  not,  with  any  show  of  justice,  deny  that  devotion  to  the 
Union  was  one  of  the  strongest  feelings  in  the  heart  of  the  Northern 
Democracy.  We  had  always  deprecated  a  separation  from  the  Southern 
States  with  so  much  earnestness  that  one  of  the  opprobrious  epithets 
you  bestowed  on  us  was  that  of  " Union  savers."  This  was  not  a  mere 
sentiment  of  admiration  or  gratitude  to  the  great  Southern  men  who 
had  led  us  through  the  perils  of  the  Eevolution,  settled  our  institutions, 
and  given  our  country  its  high  place  in  the  estimation  of  the  world. 
We  felt  all  this  !  but  we  felt  much  more.  The  preservation  of  the 
Union  was  to  us  an  absolute  necessity.  It  was  indispensable  to  the 
security  of  our  lives,  our  personal  liberty,  and  onr  plainest  rights  of 
property.  How  true  this  was  at  all  times,  and  especially  in  1860,  you 
will  see  if  you  reflect  a  moment  on  our  situation  at  that  time. 

The  abolitionists  were  coming  into  power.  I  need  not  say  by  what 
combination  of  imposture  and  accident  they  got  it.  All  the  Northern 
States  as  well  as  the  Federal  Government  fell  into  their  hands.  No 
doubt  their  dislike  of  Southern  people  was  very  great ;  but  Northern 
Democrats  were  objects  of  their  special  malignity.  Long  before  that 
time,  and  ever  since,  this  sentiment  has  been  expressed  in  words  and 
acts  too  plain  to  be  misunderstood.  You  show  how  strong  it  is  in 
your  own  heart  when  you  tell  Southern  men  (and  you  do  tell  them  so 
in  this  very  speech)  that  you  honor  them  ten  thousand  times  more  than 
Democrats  of  the  North.  Kemember,  in  addition  to  this,  that  the 
leading  abolitionists  acknowledged  no  law  which  might  stand  in  the 
way  of  their  interests  or  their  passions.  Against  anybody  else  the  Con 
stitution  of  the  country  would  have  been  a  protection.  But  they  disre 
garded  its  limitations,  and  had  no  scruples  about  swearing  to  support 
it  with  a  predetermination  to  violate  it.  We  had  been  well  warned 
by  all  the  men  best  entitled  to  our  confidence — particularly  and  elo 
quently  warned  by  Mr.  Clay  and  Mr.  Webster — that  if  ever  the  abo 
litionists  got  a  hold  upon  the  organized  physical  force  of  the  country, 
they  would  govern  without  law,  scoff  at  the  authority  of  the  courts, 
and  throw  down  all  the  defenses  of  civil  liberty. 

But  if  the  South  had  not  seceded,  we  might  have  made  a  successful 
defense  of  our  Constitution  though  the  powers  of  the  Government 
were  in  the  hands  of  its  enemies.  With  the  aid  of  the  Southern  people, 
if  they  had  been  true  to  their  duty,  we  could  have  organized  an  oppo 
sition  so  formidable  in  its  moral  and  political  power  that  you  would 
scarcely  have  dared  to  assault  us.  No  wonder  that  we  were  "Union 
savers  "  ;  for  to  us  the  Union  meant  personal  liberty,  free  thought,  an 
independent  press,  habeas  corpus,  trial  by  jury,  the  impartial  admin- 


POLITICAL  ESSA  YS  AND  LETTERS.  305 

istration  of  justice — all  those  great  legal  institutions  which  our  fore 
fathers  had  shed  so  much  of  their  blood  to  build  up. 

The  South  deserted  us  at  the  crisis  of  our  fate,  and  left  us  in  our 
weakness  to  the  mercy  of  the  most  unprincipled  tyrants  that  ever  be 
trayed  a  public  trust.  Secession  was  not  mere  folly  and  madness  ;  it 
was  something  much  worse.  We  could  not  but  feel  that  we  were 
deeply  wronged.  There  was  no  remedy  for  the  dire  calamities  with 
which  we  were  threatened  except  in  bringing  the  seceded  States  back 
to  their  places  in  the  Union.  Our  convictions  of  legal  duty,  our  ex 
asperated  sense  of  injury,  and  a  proper  care  for  our  best  interests,  all 
impelled  us  to  join  the  new  Administration  in  the  use  of  such  force 
as  might  be  found  necessary  to  execute  the  laws  in  every  part  of  the 
country. 

But  the  abolitionists  wanted  a  war  for  the  destruction  of  the 
Union,  for  the  overthrow  of  the  Constitution,  for  the  subversion  of 
free  government,  and  for  the  subjugation  of  the  whole  country  to  that 
"  higher  law  "  which  imposes  no  restraint  upon  the  rapacity  and  malice 
of  the  ruling  power.  To  such  a  war  the  national  conscience  was  op 
posed.  The  soul  of  every  respectable  officer  in  the  army  and  navy 
revolted  at  it,  and  every  virtuous  man  in  private  life  felt  it  to  be  an 
unspeakable  outrage.  To  those  who  doubted  before,  the  disaster  at 
Bull  Run  made  it  plain  that  the  war  could  not  be  successfully  carried 
on  unless  it  was  put  upon  principles  consistent  with  the  usages  of 
Christendom  and  the  safety  of  our  own  institutions.  Therefore  it  was 
that,  on  the  22d  of  July,  1861,  Congress,  with  almost  perfect  unanim 
ity,  passed  a  resolution  through  both  Houses,  declaring,  in  the  most 
explicit  words,  that  the  war  should  be  conducted  to  preserve  the  Con 
stitution,  and  not  to  revolutionize  it.  I  give  you  here  the  words  of 
the  resolution  itself  from  the  "  Congressional  Globe,"  page  223  : 

"Resolved:  That  the  present  deplorable  civil  war  has  been  forced 
upon  the  country  by  the  disunionists  of  the  Southern  States,  now  in 
arms  against  the  constitutional  government,  and  in  arms  around  the 
capital ;  that,  in  this  national  emergency,  Congress,  banishing  all  feel 
ing  of  mere  passion  or  resentment,  will  recollect  only  its  duty  to  the 
whole  country ;  that  this  war  is  not  waged  on  their  part  in  any  spirit 
of  oppression,  or  for  any  purpose  of  conquest  or  subjugation  or  pur 
pose  of  overthrowing  or  interfering  with  the  rights  or  established  in 
stitutions  of  those  States,  but  to  defend  and  maintain  the  supremacy 
of  the  Constitution,  and  to  preserve  the  Union  with  all  the  dignity, 
equality,  and  rights  of  the  several  States  unimpaired ;  and  that  as 
soon  as  these  objects  are  accomplished  the  war  ought  to  cease." 

Confiding  in  this  assurance,  Democrats  from  every  Northern  State 
rushed  to  the  front  by  the  hundred  thousand ;  the  border  States  of 
the  South  gave  in  their  formal  adhesion  to  the  Government ;  and  our 
great  military  leaders  drew  their  swords  with  alacrity  in  support  of 

20 


306  POLITICAL  ESSA  YS  AND  LETTERS. 

the  free  institutions  to  which  they  had  shown  their  fidelity  so  often 
before. 

With  what  base  perfidy  this  solemn  pledge  was  broken  I  need  not 
tell  you  ;  for  this  speech  shows  that  you  know  it  well.  You  expressly 
declare  that  so  far  from  sustaining  the  Government,  you  revolutionized 
it.  Instead  of  a  war  for  the  Union,  you  claim  that  it  put  the  States 
out  of  the  Union,  and  you  had  a  right  to  keep  them  out  as  long  as 
you  pleased,  or  admit  them  to  their  places  on  any  terms,  however  de 
grading,  which  you  choose  to  dictate.  Instead  of  restoring  the  suprem 
acy  of  the  Constitution,  all  your  politicians  held,  and,  so  far  as  I  know 
from  their  public  declarations,  still  hold,  that  the  victory  of  the  Fed 
eral  forces  abolished  the  Constitution,  not  only  in  the  South,  but  in 
the  North,  and  therefore  they  were  not  bound  to  observe  its  limita 
tions,  either  in  their  legislative,  judicial,  or  executive  measures.  In 
stead  of  bringing  back  the  States  with  their  rights  unimpaired,  ac 
cording  to  your  promise,  you  crippled,  enslaved,  subjugated,  and 
disfranchised  them.  Instead  of  using  the  war  power  for  the  just  and 
lawful  purposes  to  which  you  were  pledged,  you  converted  it  into  a 
black  Republican  job  to  put  the  rights  of  all  the  people  permanently 
under  the  feet  of  an  unprincipled  party. 

I  submit  this  part  of  the  case  to  your  consideration.  I  ask  you  to 
say  whether  you  can  find  in  the  whole  history  of  the  human  race 
another  instance  of  similar  perfidy  on  a  scale  so  large.  The  baseness 
of  the  Massachusetts  authorities  in  selling  the  surrendered  Pequods 
into  slavery,  after  a  solemn  promise  to  the  contrary,  was  but  the  "germ 
of  an  idea,"  on  which  you  acted  in  the  fullness  of  its  growth.  Their 
act  was,  in  its  nature  and  character,  nearly  as  bad  as  it  could  be,  but 
only  eight  score  of  helpless  people  suffered  by  it ;  the  victims  of  your 
treachery  are  counted  by  millions. 

The  offenses  which  you  are  now  engaged  in  committing  upon  the 
public  treasury  are  the  natural  sequence  of  your  crimes  against  popular 
liberty.  Universal  experience  proves  that  power  usurped  will  always 
be  dishonestly  used.  Seeing  that  the  abolitionists  were  led  by  men 
whom  no  oath  could  hold  to  the  Constitution,  and  whom  no  pledge 
could  bind  to  an  observance  of  its  principles,  we  had  no  right  to  expect 
a  decent  regard  for  justice  in  their  administration  of  the  national 
finances.  I  do  not  mean  that  the  masses  of  your  party  were,  or  are 
now,  destitute  of  common  integrity.  But  that  was  overruled  by  the 
political  doctrines  of  their  leaders.  Having  once  set  aside  the  estab 
lished  law  of  the  land,  they  had  no  standard  by  which  they  could 
measure  the  moral  conduct  of  themselves  or  others,  and  they  became 
incapable  of  seeing  the  difference  between  right  and  wrong  in  public 
affairs.  The  ( '  higher  law  "  threw  the  reins  loose  on  the  neck  of  all 
evil  passions.  It  not  only  abrogated  the  Constitution,  but  the  Deca 
logue  as  well,  and  the  eighth  commandment  was  nullified  with  the  rest. 


POLITICAL  ESSAYS  AND  LETTERS.  307 

You  have  consequently  made  ours  the  corruptest  Government  on 
this  side  of  Constantinople.  Perhaps  you  will  say  this  is  a  mere  gen 
eral  assertion.  But  I  am  ready  to  maintain  the  truth  of  it  against  all 
opposers.  You  may  take  the  rottenest  monarchy  in  Europe,  go  over 
its  history  for  a  hundred  years,  and  produce  the  worst  act  you  can 
find  of  fraudulent  spoliation  upon  its  people ;  and  if  I  do  not  show 
something  worse  committed  here  under  the  auspices  of  the  party  now 
in  power  I  will  give  up  the  case. 

I  am  speaking  of  the  Government — of  the  officials  who  rule  us  for 
their  pleasure,  and  plunder  us  for  their  personal  profit — and  it  is  no 
answer  to  quote  Mr.  Lord's  speech  before  the  Senate  on  the  trial  of 
Belknap.  His  eulogy  was  on  the  virtue  and  intelligence  of  the  people, 
and  he  argued  from  that  the  duty  of  their  servants  to  behave  with 
integrity.  He  certainly  did  not  mean  to  whitewash  the  administra 
tion.  If  he  had  meant  to  do  so  he  could  not  have  succeeded,  for  there 
was  not  wash  enough  in  his  bucket  to  go  over  the  twenty  thousandth 
part  of  the  job. 

While  you  were  hunting  for  certificates  of  character  among  the 
speeches  of  the  impeachment  managers,  why  did  you  overlook  that  of 
Mr.  Hoar  ?  He  said  in  effect  (for  I  cite  him  from  memory)  that  the 
one  production  in  which  our  country  excels  all  others  in  the  world  is 
the  corruption  of  its  Government.  There  was  the  testimony  of  a  can 
did  witness  belonging  to  your  own  party,  who  knew  whereof  he  affirmed 
and  spoke  directly  to  the  point. 

But  it  is  useless  to  cite  the  evidence  of  individuals  upon  great 
public  facts  that  are  felt  and  seen  and  known  of  all  men.  Nothing 
ever  was  more  notorious  than  the  general  disregard  of  all  sound  prin 
ciple  by  this  administration.  No  people  on  earth  are  now  suffering 
so  much  from  extravagant  taxation,  and  nowhere  does  so  small  a  por 
tion  of  the  taxes  go  to  legitimate  public  purposes,  or  so  much  to  the 
rulers  themselves  and  the  rings  they  choose  to  favor.'  Industry  is 
crushed  as  it  never  was  before.  Labor  no  longer  works  for  itself,  since 
all  and  more  than  all  of  its  surplus  profits  are  exacted  and  consumed 
by  the  hangers-on  of  the  Government.  Now,  although  we  call  our 
selves  freemen  or  freedinen,  we  are  to  all  intents  and  purposes  slaves, 
so  long  as  you  continue  to  make  us  hand  over  to  you  the  earnings  of 
our  labor  ;  for  the  essence  of  slavery  consists  in  compelling  one  man, 
or  class  of  men,  to  work  for  another  without  equivalent.  We  are  de 
termined  to  relieve  ourselves  from  this  intolerable  bondage,  as  far  as 
we  can  legally  and  peaceably,  and,  if  you  do  not  help  us,  you  must  at 
least  cease  to  mock  us  by  pretending  to  be  an  anti-slavery  man  upon 
principle. 

You  tell  us  that  the  Republican  party  "will  punish  its  own  ras 
cals."  The  newspaper  report  of  your  speech  says  that  this  was  greeted 
with  laughter  from  the  Republican  side  of  the  House.  Certainly  it 


308  POLITICAL  ESSAYS  AND  LETTERS. 

sounds  like  the  broadest  of  jokes.  If  you  meant  it  in  earnest,  please 
to  say  what  you  found  this  claim  of  impartial  justice  upon.  You  will 
hardly  prove  it  by  showing  that  Bristow  and  Wilson  succeeded,  with 
much  tribulation,  in  convicting  certain  manufacturers  of  crooked 
whisky,  and  thereby  got  themselves  turned  out  of  office.  It  is  vain 
to  deny  that  there  is,  and  has  been,  a  general  system  of  dishonesty  per 
vading  all  ranks  of  the  civil  service,  which,  so  far  from  being  pun 
ished,  is  protected,  encouraged,  and  rewarded  by  the  highest  authori 
ties.  You  have  set  your  faces  like  a  flint  against  all  investigations 
tending  to  expose  rascality.  Proof  of  that,  if  proof  were  wanting, 
would  be  found  in  your  own  denunciation  of  the  present  Congress  for 
pushing  its  inquiries  into  those  regions  where  venality  and  corruption 
might  otherwise  have  dwelt  in  safety. 

In  all  your  Southern  measures  you  have  shown  a  positive  abhor 
rence  of  honest  government.  You  forced  into  all  places  of  power, 
men  whose  characters  were  notoriously  bad,  and  maintained  them 
while  they  perpetrated  the  most  shameless  robberies.  You  resisted 
every  effort  of  the  oppressed  people  to  throw  them  off,  and,  when  those 
efforts  were  successful  in  some  of  the  States,  you  mourned  the  fall  of 
the  felons  with  sincere  lamentation.  Just  look  at  the  crew  of  godless 
wretches  by  whom  Louisiana  has  been  almost  desolated  !  In  the  face 
of  a  constitutional  interdict,  your  administration  at  Washington  re 
peatedly  interfered  to  shield  them  from  justice,  and  to  uphold  them 
in  the  possession  of  power  to  which  they  had  no  manner  of  legal  claim. 
At  this  moment  they  are  preying  upon  the  prostrate  people  of  the 
State,  under  the  protection  of  Federal  bayonets.  Is  that  what  you 
call  punishing  your  own  rascals  ? 

You  may  answer  that  the  white  people  of  Louisiana,  being  con 
quered,  are  rightfully  enslaved,  according  to  the  principles  planted  at 
Plymouth,  and  therefore  it  is  not  for  the  like  of  them  to  invoke  the 
protection  of  law  and  justice.  I  will  therefore  call  your  attention  to 
another  case  to  which  the  Dahomeian  rule  does  not  apply,  and  in 
which  the  failure  of  the  Republican  party  to  punish  its  own  rascals 
has  been  equally  signal ;  I  mean  the  frauds  of  the  Union  Pacific  Rail 
road  Company  and  the  Credit  Mobilier. 

You  will  pardon  me,  I  am  sure,  for  referring  to  this  affair ;  you 
are  the  last  man  upon  whom  I  would  make  a  personal  point,  and  I 
could  not  do  it  here  if  I  would  try ;  for  the  conviction  I  have  often 
expressed  remains  unchanged,  that  your  integrity  was  not  stained  by 
such  connection  as  you  had  with  that  business.  But  we  both  know 
that  it  was  the  most  gigantic  fraud  that  the  history  of  modern  times 
discloses.  The  magnitude  of  the  iniquity  almost  exceeds  belief.  The 
entire  amount  of  the  booty  already  taken  from  the  public  and  stowed 
away  in  the  pockets  of  the  perpetrators  can  not  be  less  than  one  hun 
dred  millions  of  dollars,  and  every  six  months  they  make  a  new  de- 


POLITICAL  ESSAYS  AND  LETTERS.  309 

mand,  which  is  honored  at  the  treasury  by  an  additional  payment.  I 
am  told  that  a  late  Attorney-General  counts  one  hundred  and  eighty 
millions  as  the  sum  which  the  United  States  wilj  lose  in  solid  cash, 
directly  taken  out  of  the  treasury.  I  am  not  sure  that  this  calculation 
is  accurate,  but  it  can  not  be  very  far  wrong,  and  it  is  not  equal  to 
one  half  of  the  whole  steal ;  for  it  does  not  include  the  value  of  the 
road  itself,  nor  the  land  grants,  nor  the  proceeds  of  the  bonds  to 
which  the  lien  of  the  United  States  was  postponed,  nor  the  equipment 
bonds.  As  this  swindle  was  the  largest,  so  it  was  one  of  the  most 
inexcusably  base.  It  was  perpetrated  at  a  time  when  the  nation  was 
swamped  with  debt,  when  the  people  were  loaded  with  taxes,  and 
when  the  most  rigid  economy  was  imperatively  required.  All  circum 
stances,  as  well  as  the  direct  evidence,  show  that  it  was  no  sudden  act 
of  thoughtless  imprudence,  but  was  willfully,  deliberately,  and  cor 
ruptly  prearranged  and  determined.  There  is  nothing  to  mitigate  it ; 
you  can  not  defend  it  even  by  waving  the  bloody  shirt. 

How  did  the  Republican  party  "punish  its  own  rascals"  in  this 
case  ?  Not  a  hair  on  the  head  of  any  rascal  was  touched.  On  the 
contrary,  they  were  promoted,  honored,  and  advanced ;  the  most  guilty 
of  them  are  now,  as  they  were  before,  the  very  darlings  of  the  party. 
Even  that  is  not  the  worst  of  it.  These  swindlers  are  periodically 
swelling  the  colossal  proportions  of  their  crime  by  taking  out  of  the 
treasury  additional  millions  which  they  claim  as  the  "precious  re 
sults  "  of  their  original  fraud.  They  have  no  better  title  to  them  than 
a  wolf  has  to  the  mutton  he  slaughters  by  moonlight.  The  legal 
remedy  against  these  exactions  is  so  plain  that  ignorance  alone  could 
hardly  miss  it.  But  your  officers  have  found  out  the  way  not  to  do 
it.  They  permit  the  Government  to  lie  down  and  be  robbed  semi- 
annually,  by  a  corporation  which  Tilden  would  long  ago  have  disarmed 
pf  its  power,  and  whose  criminal  abettors  he  would  have  swept  into 
the  penitentiary  by  scores. 

I  repeat  that  I  do  not  blame  you  as  an  active  accomplice  in  this 
wickedness.  But  you  ought  to  have  come  out  from  the  evil  and  cor 
rupt  fellowship  as  soon  as  you  saw  how  evil  and  corrupt  it  was.  You 
owed  it  to  yourself,  your  Church,  and  your  country,  to  break  off  at  once 
from  political  associates  capable  of  such  indefensible  conduct.  But 
your  acceptance  of  the  doctrines  planted  at  Plymouth  by  the  Yankees 
blinded  your  judgment,  and  made  your  conscience  inaccessible  to  the 
principles  planted  in  Jerusalem  by  the  "people  first  called  Christians 
at  Antioch." 

You  would  have  us  believe  that  Hayes,  if  elected,  will  reform 
abuses  and  give  us  a  pure  administration.  Your  statement,  and  that 
of  other  gentlemen  equally  reliable,  make  it  certain  that  Mr.  Hayes 
bears  an  irreproachable  character  in  all  his  private  relations.  I  do  not 
doubt  his  possession  of  that  negative  honesty  which  it  is  a  disgrace  to 


310  POLITICAL  ESSAYS  AND  LETTERS. 

want.  I  accord  him  those  tame  household  virtues  which  entitle  him 
to  the  respect  of  his  neighbors  and  the  confidence  of  his  family ;  but 
he  can  no  more  stem  the  torrent  of  Eepublican  corruption  than  he  can 
swim  against  the  rapids  of  Niagara.  His  whole  history  shows  that  he 
would  not  even  make  an  effort  to  do  so.  He  has  been  most  happily 
called  "a  man  of  tried  subserviency." 

A  reformer  in  these  times  must  be  made  of  stern  material.  He 
must  have  no  connection  with,  and  be  under  no  obligation  to,  the 
authors  of  the  abuses  which  need  reform.  Above  all  things,  he  must 
not  have  consented,  expressly  or  impliedly,  to  the  commission  of  the 
public  wrongs  which  his  duty  as  a  reformer  would  require  him  to 
punish.  When  he  comes  to  oppose  wickedness  in  high  places,  the 
consciousness  that  he  himself  is  in  pari  delicto  will  make  even  a  strong 
man  as  nerveless  as  infancy. 

To  show  how  hard  it  would  be  for  a  man  like  Mr.  Hayes  to  resist 
the  worst  orders  of  his  own  party,  I  will  cite  a  case  directly  in  point, 
and  certainly  within  your  recollection  as  well  as  mine. 

In  the  case  of  Milligan,  you  made  an  eloquent  and  powerful  speech 
before  the  Supreme  Court  for  those  free  principles  which  I,  at  the 
same  time,  supported  in  my  weaker  way.  You  showed  the  indestruc 
tible  right  of  every  citizen  to  a  legal  trial  ;  you  proved  that  Magna 
Charta  did  not  perish  on  the  battle-field  ;  you  demonstrated  by  irre 
sistible  logic  that  the  Constitution  was  supreme  after  the  war  as  it  was 
before  ;  you  spurned  with  lofty  contempt  the  brutal  idea  that  law  was 
extinguished  by  the  victory  of  the  forces  called  out  to  defend  it ;  and 
you  closed  with  that  grand  peroration  on  the  goddess  of  Liberty, 
which,  if  spoken  at  Athens  in  the  best  days  of  her  "  fierce  Demo 
cratic,"  would  have  "shook  the  arsenal  and  fulmined  over  Greece." 
These  were  not  the  words  of  a  paid  advocate,  for  you  had  volunteered 
in  the  cause  ;  nor  the  sudden  emotions  of  a  neophyte,  for  you  had 
read  and  pondered  the  subject  well.  You  spoke  the  deliberate  conclu 
sions  of  your  mind,  and  there  is  no  doubt  that  in  your  heart  of  hearts 
you  believe  them  to  be  true  this  day. 

Yet  when  the  reconstruction  law  was  proposed,  you  suffered  your 
self  to  be  whipped  in,  surrendered  your  conscience  to  your  party,  and 
voted  against  your  recorded  convictions,  for  a  measure  that  nullified 
every  provision  of  the  Constitution,  whereby  ten  millions  of  people 
were  deprived  of  rights  which  you  knew  to  be  sacred  and  inalienable. 

If  this  was  your  case,  what  subserviency  may  not  be  expected  from 
Mr.  Hayes,  when  the  party  lash  comes  to  be  laid  on  Ms  back  ?  You 
are  his  superior  in  every  quality  that  holds  a  man  true  to  public  duty. 
You  have  been  carefully  schooled  in  the  morality  of  the  New  Testa 
ment,  you  have  lived  all  your  life  in  the  full  blaze  of  the  gospel,  you 
are  gifted  with  a  logical  acumen  which  few  can  boast,  and  with  moral 
courage  far  above  the  average.  If  you  fell  down  before  the  Moloch  of 


POLITICAL  ESSAYS  AND  LETTERS.  311 

abolitionism,  and  gave  up  all  principle  at  once,  what  act  of  worship 
will  Hayes  deny  to  that  grim  idol  ? 

Speaking  of  reconstruction,  and  seeing  your  broad  accusations  of 
treason,  I  am  tempted  to  ask  if  you  are  sure  that  you  yourself  and 
your  associates  did  not  commit  that  crime. 

In  March,  1867,  the  then  existing  Government  of  the  Union  was 
supreme  all  over  the  country,  and  every  State  had  a  separate  govern 
ment  of  its  own  for  the  administration  of  its  domestic  concerns.  That 
Government  was  entitled  then,  if  it  ever  was,  to  the  universal  obedience 
of  all  citizens,  and  you,  its  officers,  had  taken  a  special  oath  of  fidelity  to 
it.  Nevertheless,  you  made  a  deliberate  arrangement  not  only  to  with 
draw  your  support  from  it,  but  to  overthrow  it  totally  in  ten  of  the 
States  ;  and  this  you  did  by  military  force.  In  all  the  South  you  levied 
war  against  the  nation  and  against  the  defenseless  States,  destroyed  the 
free  governments  of  both,  and  substituted  in  their  place  an  untempered 
and  absolute  despotism. 

Now,  suppose  you  had  been  indicted  for  this  :  how  could  you  have 
escaped  the  condemnation  of  the  law  ?  I  know  your  excuses,  and  I 
can  understand  your  claims  to  mercy ;  but  what  legal  defense  could 
you  have  made  consistent  with  your  own  argument  and  the  decision 
of  the  court  in  the  Milligan  case  ? 

I  can  not  describe  to  you  how  unpleasant  is  the  sensation  produced 
by  your  professions  of  a  desire  for  peace.  Why  do  you  not  give  us  peace 
if  you  are  willing  we  shall  have  it  ?  You  need  but  to  cease  hostilities, 
and  the  general  tranquillity  will  be  restored.  You  refuse  to  do  that 
because  peace  would  endanger  your  party  ascendency.  To  maintain 
your  plunderers  in  power,  you  have  uniformly  resorted  to  the  bayo 
net  ;  you  have  made  civil  war  the  chronic  condition  of  the  country ; 
wherever  you  could  you  have  displaced  liberty,  fraternity,  and  equality, 
and  given  nothing  instead  but  infantry,  artillery,  and  cavalry.  You  are 
at  this  moment  openly  engaged  in  preparing  your  battalions  for  armed 
intervention  in  the  struggle  of  the  people  with  the  carpet-baggers. 

What  makes  this  worse  is  your  closing  declaration  that  you  will 
take  no  step  backward.  There  is  to  be  no  repentance,  no  change  of 
policy,  and  consequently  no  peaceful  or  honest  government.  "  On 
ward  "  you  say  is  the  word.  Onward — to  what  ?  To  more  war,  more 
plunder,  more  oppression,  more  universal  bankruptcy,  heavier  taxes, 
and  still  worse  frauds  on  the  public  treasury  ? 


312  POLITICAL  ESSA  YS  AND  LETTERS. 


THE  GEEAT  FRAUD. 

"  Thou  hast  it  now,  King,  Cawdor,  Glamis,  aU, 
As  the  weird  women  promised,  and  I  fear 
Thou  play'dst  most  foully  for't." 

SINCE  the  first  formation  of  what  Washington  called  "  our  happy 
system  of  government,"  no  event  not  accompanied  with  violence  or 
war  has  excited  a  feeling  so  intense  as  the  act  of  "counting  in  Hayes." 
But  the  public  men  of  the  country,  and  the  people  generally,  are  far 
from  being  agreed  about  its  character  or  its  probable  effect  in  the 
future. 

Democrats,  who  knew  Mr.  Tilden  to  be  elected  by  an  overwhelm 
ing  majority,  both  of  the  popular  vote  and  of  the  electors  duly  ap 
pointed,  were  transported  with  passionate  indignation  when  they  saw 
his  defeated  competitor  lifted  over  his  head  by  a  series  of  manoeuvres 
which  they  thought  alike  incompatible  with  honesty  and  law.  In 
every  part  of  the  country,  by  the  press,  from  the  rostrum,  and  in  the 
halls  of  Congress,  the  charge  of  base  and  unmitigated  fraud  was  thun 
dered  into  the  ear  of  the  world.  Some,  who  indulged  in  no  vehe 
mence  of  objurgation  or  reproach,  were  bowed  down  with  shame  at  the 
thought  that  their  proud  right  as  American  citizens,  of  electing  a  ruler 
for  themselves,  had  been  taken  out  of  their  hands  by  a  trick,  and  trans 
ferred  to  a  set  of  low  conspirators,  whom  they  could  not  help  but  hold 
in  utter  detestation.  All  that  once  ennobled  the  nation  seemed  to  be 
buried  in  this  deep  grave,  dug  by  the  Eeturning  Board  and  filled  up 
by  the  Electoral  Commission. 

But  the  voice  of  lamentation  proves  nothing ;  neither  does  the 
wrath  which  "cleaves  the  general  ear  with  horrid  speech"  :  for  both 
are  the  natural  utterances  of  a  defeated  party,  especially  when  the 
defeat  comes  unexpectedly,  after  victory  was  assured,  and  in  ways  not 
foreseen.  There  is  another  side  to  the  case. 

The  men  who  did  this  deed  will  not  admit  it  to  have  been  wrong, 
or  let  judgment  of  condemnation  go  by  default.  Some  misgivings 
there  may  have  been  here  and  there  ;  but  nearly  all  zealous  Republi 
cans  saw  it  with  unreserved  approbation.  Not  only  the  herd  of  low 
politicians,  who  always  ramp  and  swear  and  bluster  on  the  winning 
side,  but  high-placed  gentlemen" of  good  character  heard  the  announce 
ment  with  pleasure,  that  what  we  call  the  Louisiana  swindle  was  too 
sacred  a  thing  to  be  questioned.  The  decision  was  hailed  by  Christian 
statesmen  with  loud  benedictions.  On  Sunday,  the  4th  of  March, 
pious  Republicans  assembled  themselves  together  in  prayer-meetings, 
and  simultaneously  sent  up  to  heaven  the  most  fervent  petitions  that 
God  would  bless  the  Returning  Boards  and  the  Electoral  Commission, 
sanctify  the  work  of  their  hands,  and  prosper  the  pseudo  President 


POLITICAL  ESSAYS  AND  LETTERS.  313 

whom  they  had  placed  in  power.  Elsewhere  the  party  demonstrated 
its  pleasure  by  firing  off  a  large  number  of  great  guns.  In  some  places 
the  admiring  people  gathered  in  gay  and  festive  crowds,  and  drank 
deep  potations  to  the  defeat  of  Tilden's  big  majority,  while  Bradley 
and  Kellogg,  Chandler  and  Packard,  Wells,  Anderson,  and  the  two 
mulattoes,  were  "in  their  flowing  cups  freshly  remembered."  In 
both  houses  of  Congress  the  representatives  of  the  party  to  whom 
Mr.  Hayes  belonged  stood  square  and  solid  in  defense  of  his  title. 
They  heard  the  imputation  of  dishonesty  upon  themselves  and  their 
fellow-partisans  with  no  sign  of  shame  or  fear.  On  the  contrary, 
"hope  elevated  and  joy  brightened  their  crests,"  as  they  saw  the  im 
posture  progress  step  by  step  to  its  consummation.  Two  members 
from  Massachusetts  were  troubled  with  scruples,  and  one  from  Florida 
denounced  the  fraud  which  elected  himself  as  well  as  Hayes  ;  but  this 
could  scarcely  be  said  to  break  the  unanimity  of  the  party.  Since  the 
close  of  the  session  they  have  seemed  to  enjoy  their  triumph  mightily, 
and  the  applause  of  their  beloved  constituents  has  not  been  wanting  to 
increase  their  self-satisfaction. 

It  is  very  manifest  from  all  this  that  the  party  calling  itself  Ee- 
publican  differs  toto  ccelo  from  the  Democratic  view  of  the  subject. 
Republicans  believe  either  that  no  fraud  has  been  committed,  or  else 
that  a  fraud  by  which  they  profited  was  a  fit  and  proper  thing  for 
them  to  do.  Whichsoever  of  these  positions  they  take,  a  question  is 
raised  which  demands  fair,  full,  and  free  discussion,  so  that  truth  may 
prevail  and  justice  be  done.  If  the  organs  and  representatives  of  the 
Democracy  have  merely  raised  a  false  and  malicious  clamor  against 
their  opponents,  they  deserve  the  severest  reprehension  that  the  cen 
sure  of  the  world  can  visit  upon  them ;  they  should  be  deprived  of 
all  political  influence,  and  no  share  in  public  business,  local  or  na 
tional,  should  ever  again  be  trusted  to  their  control.  On  the  other 
hand,  if  it  be  true  that  we  have  an  administration  of  the  General 
Government  which  is  not  the  result  of  an  honest  election,  but  the 
mere  spawn  of  a  corrupt  conspiracy,  then  popular  liberty  has  been 
deeply,  perhaps  fatally,  injured,  and  all  who  aided  in  the  crime,  all 
who  gave  comfort  to  the  criminals,  and  all  who  knowingly  partook  of 
the  iniquity  by  receiving  its  wages,  ought  to  be,  and  in  the  fullness  of 
time  they  undoubtedly  will  be,  classed  among  the  worst  malefactors  of 
the  age. 

The  prominent  and  well-known  facts  of  the  case,  set  forth  in  the 
plain  style  of  simple  narration,  will  show  whether  the  count  was  hon 
est,  and,  if  not  honest,  whether  any  excuse  can  be  found  for  its  false 
ness.  But  to  make  this  more  intelligible,  it  is  necessary  to  remind  the 
reader  of  certain  points  in  our  political  history  which  have  within  the 
last  twenty  years  divided  the  two  parties  and  defined  their  antagonism. 

The  powers  of  the  Federal  Government,  the  rights  of  the  States, 


-314:  POLITICAL  ESSAYS  AND  LETTERS. 

and  the  liberties  of  the  people — these  constitute  the  essential  parts  of 
the  system  to  which  our  fathers  set  the  seal  of  their  wisdom  and  vir 
tue.  This  trinity  of  political  forces,  so  harmoniously  adjusted  that 
each  gave  strength  to  the  others,  did  indeed  seem  to  make  a  Govern 
ment  as  nearly  perfect  as  possible.  Each  was  a  vital  part ;  the  "  life 
of  the  nation  "  depended  upon  the  preservation  of  one  as  much  as  the 
other ;  the  Government  (using  the  word  in  its  true  •  American  sense) 
would  as  certainly  be  destroyed  by  the  overthrow  of  popular  liberty, 
or  the  subjugation  of  the  States,  as  by  successful  resistance  to  Federal 
authority. 

These  notions  of  fidelity  to  the  whole  of  the  Government,  and 
every  part  of  it,  placed  the  Democracy,  during  the  civil  war,  in  the 
most  difficult  attitude  that  can  be  conceived.  They  were  obliged  to 
fight  secession,  and  fight  it  with  the  sword,  if  nothing  else  would  do  ; 
for  to  them  rebellion  against  the  lawful  authority  of  the  United  States 
was  "as  the  sin  of  witchcraft."  At  the  same  time  the  best  convic 
tions  of  their  hearts  impelled  them  to  defend  their  individual  rights 
of  life,  liberty,  and  property,  which  were  most  wantonly  and  unjustly 
assailed  by  the  abolitionists.  Seeing  their  institutions  attacked  on 
both  flanks  at  once  by  different  enemies,  most  of  them  thought  it 
best  to  simplify  their  duty  by  postponing  their  resistance  to  one  until 
the  other  was  conquered.  They  hoped  that,  when  the  Union  was  re 
stored,  the  Constitution  would  be  allowed  to  reassume  its  supremacy 
without  further  opposition.  This  hope  was  founded  on  very  solemn 
declarations  by  the  President  (Lincoln)  that  he  was  a  true  friend  of 
the  Constitution,  and  meant  no  war  except  purely  in  defense  of  the 
United  States.  Besides,  Congress,  by  a  vote  nearly  unanimous  in 
both  houses,  assured  the  country  that  the  war  had  not  any  revolu 
tionary  purpose  whatever,  but  should  be  conducted  solely  to  enforce 
the  laws,  and  to  maintain  the  supremacy  of  the  Federal  Constitution, 
with  all  the  rights  of  the  States  unimpaired. 

All  these  pledges  were  most  perfidiously  broken.  The  ultra-abo 
litionists,  at  the  close  of  the  war,  had  a  two  thirds  majority  in  Con 
gress,  and  could  do  what  they  pleased.  They  refused  to  keep  faith. 
They  insisted  that  the  Government  was  revolutionized  ;  that  State 
rights  had  ceased  to  be  ;  that  personal  liberty  in  the  Southern  States 
had  been  extinguished  ;  that  the  people  of  the  South,  being  conquered, 
bore  to  the  conquerors  no  legal  relation  except  that  which  existed  be 
tween  the  King  of  Dahomey  and  the  Guinea  negroes  whom  he  cap 
tured  and  sold  ;  that  they  might  be  governed  without  law,  and  espe 
cially  without  regard  to  that  fundamental  law  which  the  legislators 
were  sworn  to  observe  in  all  their  acts.  The  Constitution,  instead  of 
being  defended,  had  been  shot  to  death  on  the  battle-field.  It  was 
dead,  and  could  not  be  pleaded  to  protect  the  weak,  or  restrain  the 
evil  passions  of  the  strong  party. 


POLITICAL  ESSAYS  AND  LETTERS.  315 

Upon  this  principle  the  Beconstruction  Act  of  1867  was  based. 
It  was  simply  a  slave-code.  Not  one  provision  of  the  Constitution 
was  left  unviolated  ;  all  the  rights  which  our  forefathers,  on  this  or 
the  other  side  of  the  Atlantic,  shed  their  blood  to  maintain,  were  in 
sultingly  overborne.  If  the  Constitution  still  lived,  this  act  of  Con 
gress  was  a  gross  breach  of  the  oath  which  the  members  had  taken  to 
support  it ;  if  we  suppose  it  dead,  the  act  was  a  most  indecent  outrage 
on  its  corpse. 

For  a  time  the  Southern  people  lived  at  the  mercy  of  the 'military 
officers  who  were  sent  to  keep  the  yoke  tight  upon  their  necks.  Most 
of  these,  being  gentlemen  of  honor  and  humanity,  they  did  the  work 
of  oppression  reluctantly,  and  sometimes  failed  altogether.  General 
Hancock,  for  instance,  startled  the  authorities  at  Washington  by  a 
published  letter  in  favor  of  civil  liberty.  It  became  plain  that  this 
"sabre  sway"  would  not  last  long  nor  be  perfectly  effectual  while  it 
continued.  The  divine  right  of  the  negro  to  govern  the  white  man 
was  then  asserted,  and  his  ascendency  secured,  by  the  Fifteenth  Amend 
ment,  in  the  confident  hope  that  his  ballot  would  be  a  more  effectual 
instrument  of  tyranny  than  the  soldier's  bullet. 

The  people  would  not  have  been  wholly  crushed,  either  by  the  sol 
dier  or  the  negro,  if  both  had  not  been  used  to  fasten  upon  them  the 
domination  of  another  class  of  persons,  whose  rule  was  altogether  un 
endurable.  These  we  call  carpet-baggers,  not  because  the  word  is 
descriptive  or  euphonious,  but  because  they  have  no  other  name  where 
by  they  are  known  among  the  children  of  men.  They  were  unprin 
cipled  adventurers,  who  sought  their  fortunes  in  the  South  by  plunder 
ing  the  disarmed  and  defenseless  people  ;  some  of  them  were  the  dregs 
of  the  Federal  army — the  meanest  of  the  camp-followers  ;  many  were 
fugitives  from  Northern  justice  ;  the  best  of  them  were  those  who 
went  down  after  the  peace,  ready  for  any  deed  of  shame  that  was  safe 
and  profitable.  These,  combining  with  a  few  treacherous  ' '  scalawags," 
and  some  leading  negroes  to  serve  as  decoys  for  the  rest,  and  backed 
by  the  power  of  the  General  Government,  became  the  strongest  body  of 
thieves  that  ever  pillaged  a  people.  Their  moral  grade  was  far  lower, 
and  yet  they  were  much  more  powerful,  than  the  robber-bands  that 
infested  Germany  after  the  close  of  the  Thirty  Years'  War.  They 
swarmed  over  all  the  States  from  the  Potomac  to  the  Gulf,  and  settled 
in  hordes,  not  with  intent  to  remain  there,  but  merely  to  feed  on  the 
substance  of  a  prostrate  and  defenseless  people.  They  took  whatever 
came  within  their  reach,  intruded  themselves  into  all  private  corpora 
tions,  assumed  the  functions  of  all  offices,  including  the  courts  of  jus 
tice,  and  in  many  places  they  even  "  run  the  churches."  By  force 
and  fraud  they  either  controlled  all  elections  or  else  prevented  elections 
from  being  held.  They  returned  sixty  of  themselves  to  one  Congress, 
and  ten  or  twelve  of  the  most  ignorant  and  venal  among  them  were  at 


316  POLITICAL  ESSAYS  AND  LETTERS. 

the  same  time  thrust  into  the  Senate.  This  false  representation  of  a 
people  tyy  strangers  and  enemies,  who  had  not  even  a  bonafide  residence 
among  them,  was  the  bitterest  of  all  mockeries.  There  was  no  show 
of  truth  or  honor  about  it.  The  pretended  representative  was  always 
ready  to  vote  for  any  measure  that  would  oppress  and  enslave  his  so- 
called  constituents  ;  his  hostility  was  unconcealed,  and  he  lost  no  op 
portunity  to  do  them  injury. 

Under  all  these  wrongs  and  indignities  the  Caucasian  men  of  the 
South  were  prudent,  if  not  patient.  No  brave  people  accustomed  to 
be  free  ever  endured  oppression  so  peacefully  or  so  wisely.  The  Irish, 
with  less  provocation,  were  in  a  state  of  perpetual  turbulence  ;  the 
Poles  were  always  conspiring  against  the  milder  rule  of  their  Russian 
masters  :  but  Southern  men  "  made  haste  slowly "  to  recover  their 
liberties.  They  could  not  break  the  shackles  of  usurped  control,  but 
some  of  the  links  gradually  rusted  and  fell  away  of  themselves.  The 
gross  impolicy  of  desolating  the  fairest  half  of  the  country  impressed 
itself  more  and  more  on  the  Northern  mind ;  the  mere  expense,  in 
money,  of  maintaining  this  vulgar  tyranny  became  disgusting.  The 
negroes  gradually  opened  their  eyes  to  the  truth  .that  they  were  as 
badly  imposed  upon  as  the  whites.  With  consummate  skill  the  natu 
ral  leaders  of  the  people  hoarded  every  fresh  acquisition  of  self-govern 
ing  power.  State  after  State  deposed  its  corrupt  Governor,  by  impeach 
ment  or  otherwise,  and  brought  its  official  criminals  to  justice,  until 
all  were  redeemed  except  Florida,  South  Carolina,  and  Louisiana.  A 
more  particular  look  at  the  condition  of  the  last-named  State  is  needed, 
because  it  was  the  principal  theatre  of  the  "  Great  Fraud." 

The  agricultural  and  commercial  wealth  of  Louisiana  made  her  a 
strong  temptation  to  the  carpet-baggers.  Those  vultures  snuffed  the 
prey  from  afar  ;  and,  as  soon  as  the  war  was  over,  they  swooped  down 
upon  her  in  flocks  that  darkened  the  air.  The  State  was  delivered 
into  their  hands  by  the  military  authorities,  but  the  officers  imposed 
some  restraints  upon  their  lawless  cupidity.  They  hailed  with  delight 
the  advent  of  negro  suffrage,  because  to  them  it  was  merely  a  legalized 
method  of  stuffing  the  ballot-box — and  they  stuffed  it.  Thenceforth, 
and  down  to  a  very  recent  period,  they  gorged  themselves  without  let 
or  hindrance. 

The  depredations  they  committed  were  frightful.  They  appropri 
ated,  on  one  pretense  and  another,  whatever  they  could  lay  their  hands 
on,  and  then  pledged  to  themselves  the  credit  of  the  State  for  un 
counted  millions  more.  The  public  securities  ran  down  to  half*price, 
and  still  they  put  their  fraudulent  bonds  on  the  market  and  sold  them 
for  what  they  would  fetch.  The  owners  of  the  best  real  estate,  in  town 
or  country,  were  utterly  impoverished,  because  the  burdens  upon  it 
were  heavier  than  the  rents  would  discharge.  During  the  last  ten 
years  the  city  of  New  Orleans  paid,  in  the  form  of  direct  taxes,  more 


POLITICAL  ESSA  YS  AND  LETTERS.  317 

than  the  estimated  value  of  all  the  property  within  her  limits,  and  still 
has  a  debt  of  equal  amount  unpaid.  It  is  not  likely  that  other  parts 
of  the  State  suffered  less.  The  extent  of  their  spoliations  can  hardly 
be  calculated,  but  the  testimony  of  the  carpet-baggers  themselves 
against  one  another,  the  reports  of  committees  sent  by  Congress  to 
investigate  the  subject,  and  other  information  from  sources  entirely 
authentic,  make  it  safe  to  say  that  a  general  conflagration,  sweep 
ing  over  all  the  State  from  one  end  to  the  other,  and  destroying 
every  building  and  every  article  of  personal  property,  would  have  been 
a  visitation  of  mercy  in  comparison  to  the  curse  of  such  a  government. 
This  may  seem  at  first  blush  like  gross  exaggeration,  because  it  is  worse 
than  anything  that  misrule  ever  did  before.  The  greediest  of  Roman 
proconsuls  left  something  to  the  provinces  they  wasted  ;  the  Norman 
did  not  strip  the  Saxon  quite  to  the  skin  ;  the  Puritans  under  Crom 
well  did  not  utterly  desolate  Ireland.  Their  rapacity  was  confined  to 
the  visible  things  which  they  could  presently  handle  and  use.  They 
could  not  take  what  did  not  exist.  But  the  American  carpet-bagger 
has  an  invention  unknown  to  those  old-fashioned  robbers,  which  in 
creases  his  stealing  power  as  much  as  the  steam-engine  adds  to  the 
mechanical  force  of  mere  natural  muscles.  He  makes  negotiable  bonds 
of  the  State,  signs  and  seals  them  "according  to  the  forms  of  law," 
sells  them,  converts  the  proceeds  to  his  own  use,  and  then  defies  jus 
tice  "  to  go  behind  the  returns.'"  By  this  device  his  felonious  fingers 
are  made  long  enough  to  reach  into  the  pockets  of  posterity ;  he  lays 
his  lien  on  property  yet  uncreated  ;  he  anticipates  the  labor  of  coming 
ages  and  appropriates  the  fruits  of  it  in  advance  ;  he  coins  the  indus 
try  of  future  generations  into  cash,  and  snatches  the  inheritance  from 
children  whose  fathers  are  unborn.  Projecting  his  cheat  forward  by 
this  contrivance  and  operating  laterally  at  the  same  time,  he  gathers 
an  amount  of  plunder  which  no  country  in  the  world  would  have 
yielded  to  the  Goth  or  the  Vandal. 

While  the  carpet-baggers  in  the  executive  offices  and  the  legislat 
ure,  assisted  by  Federal  agents,  were  making  enormous  "  piles  "  and 
plotting  for  more,  petty  larceny  reigned  supreme  in  the  rural  parishes. 
The  negroes  knew  nothing  of  the  difference  between  meum  and  tuum, 
and  the  law  which  should  have  taught  them  was  a  dead  letter  ;  every 
portable  thing  which  could  not  be  kept  under  lock  and  key — pigs, 
poultry,  the  fruits  of  the  garden  and  orchard — were  stolen  as  fast  as 
they  were  fit  for  use,  insomuch  that  the  production  of  them  had  to  be 
given  up,  greatly  to  the  distress  of  all  industrious  and  honest  persons. 
Even  the  heavier  crops,  such  as  cotton  and  corn,  were  carried  away 
from  the  fields  at  night,  and  traded  for  liquor  and  groceries  at  "  stores  " 
which  were  established  for  that  particular  branch  of  internal  commerce. 

Security  of  life  can  never  be  counted  on  where  property  is  not  pro 
tected  ;  when 'the  public  authorities  wink  upon  theft,  the  people  are 


318  POLITICAL  ESSAYS  AND  LETTERS. 

driven  by  stress  of  sheer  necessity  to  defend  themselves  the  best  way 
they  can,  and  that  defense  is  apt  to  be  aggressively  violent.  Justice, 
infuriated  by  popular  passion,  often  comes  to  its  victims  in  a  fearful 
shape.  Disorders,  therefore,  there  must  have  been,  and  bloodshed  and 
violence,  and  loss  of  life,  though  they  are  not  enumerated  or  clearly 
described  in  the  reports.  It  is  known  that  bands  of  "regulators" 
traversed  many  parts  of  the  State,  and  the  fact  is  established  that 
seven  of  the  storehouses  used  as  places  of  receiving  stolen  goods  were 
burned  to  the  ground  in  one  night.  The  officers  of  the  carpet-bag 
government  "  cared  for  none  of  these  things."  They  saw  the  struggle 
between  larceny  and  Lynch-law  with  as  much  indifference  as  Gallio 
looked  upon  the  controversy  between  the  Jewish  synagogue  and  the 
Christian  church  at  Ephesus.  This  horrible  condition  of  society  was 
caused  solely  by  the  want  of  an  honest  government. 

But  this  is  not  nearly  the  worst  of  it,  if  carpet-baggers  themselves 
and  their  special  friends  are  worthy  of  any  credence  at  all.  They  tes 
tify  to  numerous  other  murders,  wanton,  unprovoked,  and  atrocious, 
committed  with  impunity  under  the  very  eyes  of  their  government. 
General  Sheridan  says  he  collected  a  list  of.  four  thousand  assassinations 
perpetrated  within  three  years.  Senator  Sherman  and  his  associates 
of  the  visiting  committee  swell  this  number  greatly,  and  add  that  "  half 
the  State  was  overrun  with  violence."  No  effort  was  made  to  repress 
these  disorders  or  punish  the  criminals.  Nobody  was  hung,  nobody 
tried,  nobody  arrested.  The  murderers  ran  at  large  ;  the  victims  fell 
at  the  awful  average  of  about  four  every  day,  and  the  public  officers 
quietly  assented  to  let  "  the  rifle,  the  knife,  the  pistol,  and  the  rope 
do  their  horrid  work "  without  interruption.  Are  such  men  fit  to 
govern  a  free  State  ?  "  Fit  to  govern  !  No,  not  to  live." 

If  an  officer,  whose  duty  it  is  to  bring  a  felon  to  justice,  connives 
at  his  escape,  or  willfully  allows  him  to  go  free,  he  becomes  an  acces 
sory  after  the  fact,  and  by  all  civilized  codes  his  offense  is  as  great  as 
that  of  the  principal.  Certainly  such  an  officer  is  morally  responsible 
to  God  and  man  for  a  murder  which  he,  by  the  exercise  of  his  proper 
functions,  might  have  prevented,  but  did  not.  Apply  this  rule  to  the 
Louisiana  carpet-baggers,  and  measure  the  depth  of  their  iniquity. 

There  is  an  aggravation  of  it,  in  the  fact  stated  by  Mr.  Sherman, 
that  most  of  these  murders  were  done  upon  negroes,  many  of  them 
females,  and  some  of  them  mere  children.  The  carpet-baggers  pro 
fessed  to  be  the  special  friends  and  protectors  of  the  African  race  ;  yet 
they  permitted  them  to  be  slaughtered  by  thousands  with  quiet  uncon 
cern,  not  lifting  a  finger  to  stay  the  wholesale  destruction  of  their  lives. 

Is  there  any  mitigation  of  the  terrible  guilt  thus  imputed  to  them 
by  their  friends  ?  Some  of  their  advocates  say  they  were  too  weak  to 
maintain  public  order,  and  were  afraid  even  to  try.  This  will  not 
do  ;  for  imbecility  or  cowardice  in  such  circumstances  is  as  bad  as 


POLITICAL  ESSAYS  AND  LETTERS.  319 

willful  default.  A  magistrate  who  says  he  can  not  punish  or  prevent 
continued  murder  is  himself  a  murderer  unless  he  gives  place  to  some 
body  else  who  can.  But  in  truth  the  carpet-baggers  did  not  lack 
strength  ;  and  no  courage  was  required.  Legal  process  was  never 
opposed  ;  the  great  body  of  the  people  were  on  the  side  of  law  and 
order  ;  in  every  parish  the  sheriff  could  raise  an  irresistible  posse;  the 
aid  of  the  United  States  Marshal,  with  thousands  of  willing  and  well- 
paid  deputies,  could  always  be  commanded  ;  the  State  had  the  largest 
police  force  in  America  ;  and  at  the  back  of  all,  "  leashed  in  like 
hounds,"  the  solid  battalions  of  the  Federal  army  "crouched  for  em 
ployment." 

But  let  us  be  just.  Kellogg  and  his  confederates  do  not  deserve  all 
this  infamy.  The  story  of  four  thousand  murders  is  part  of  the  Great 
Fraud,  and  was  fabricated  to  serve  as  an  excuse  for  the  false  count. 
The  heads  of  the  administration  at  Washington  may  properly  be 
called  its  creators,  for  they  said,  "  Let  it  be  made,  and  it  was  made." 
The  theory  was  that  murder  and  violence,  which  the  carpet-bag 
officers  were  too  weak  or  too  wicked  to  stop,  gave  them  a  paramount 
claim  to  the  perpetual  continuance  of  their  disorderly  rule,  and  that 
therefore  the  votes  of  a  popular  majority  against  them  or  their  candi 
dates  for  Governor  and  President  ought  not  to  be  counted.  Acting 
upon  this  view,  they  made  up  for  the  then  existing  government 
of  Louisiana  the  "bloodiest  record  on  the  page  of  time,"  and  used  it 
on  all  occasions  as  a  standing  answer  to  every  demand  for  an  honest 
count  of  the  votes  legally  polled.  That  this  was  the  predetermined 
intent  as  well  as  the  actual  use  of  it  is  very  apparent.  General  Sheri 
dan  accompanied  his  statement  with  a  proposition,  not  only  to  disfran 
chise  certain  political  organizations  opposed  to  the  carpet-baggers,  but 
to  outlaw  them  as  banditti,  and  leave  them  to  be  shot  and  strangled 
by  the  soldiery  under  his  orders  ;  and  the  Secretary  of  War  assured 
him  that  his  course  was  highly  approved  by  the  President  and  all  his 
Cabinet.*  Senator  Sherman  and  his  visiting  committee,  after  giving 
a  most  revolting  account  of  the  cruelty,  bloodshed,  and  violence  prac 
ticed  under  the  carpet-bag  government,  conclude  that  if  the  people, 
by  their  majority  already  recorded,  shall  prevail  against  it  and  its 
presidential  candidate,  "  then  shall  the  glories  of  the  Republic  have 
departed."  Senator  Morton,  speaking  from  the  bench  of  the  Electoral 
Commission,  drew  his  strongest  argument  for  a  false  count  from  the. 
murders  perpetrated  under  carpet-bag  auspices.  Senator  Howe,  of  Wis 
consin,  advocating  the  fraud,  went  minutely  into  the  history  of  many 
unpunished  homicides ;  he  smeared  and  daubed  the  Kellogg  govern- 

*  This  dispatch  was  hastily  written  by  the  Secretary  of  War,  who,  without  intending  it, 
did  great  injustice  to  a  part  of  the  Cabinet.  We  have  the  authority  of  General  Belknap 
himself  for  saying  that  Mr.  Fish  and  Mr.  Bristow  indignantly  protested  against  General 
Sheridan's  atrocious  proposition. 


320  POLITICAL  ESSAYS  AND  LETTERS. 

ment  with,  innocent  blood,  and  pronounced  it  eminently  "respectable" 
Nearly  all  the  lesser  lights  took  the  same  line  of  argument.  It  was  a 
grievous  wrong  against  the  carpet-baggers  to  weave  this  bloody  stripe 
into  the  web  of  their  history,  which  was  bad  enough  without  that ; 
but  to  set  it  up  as  a  reason  for  disfranchising  the  people  who  vote 
against  a  government  so  stained  seems  like  a  new  species  of  moral  in 
sanity. 

To  parade  acts  of  violence  and  murder  perpetrated  within  the  juris 
diction  of  a  carpet-bag  government  was  called,  in  the  flash  language 
of  the  politicians,  "  waving  the  bloody  shirt,"  and  considered  a  most 
effective  mode  of  electioneering.  A  bloody  shirt  of  their  own,  always 
ready  to  be  waved,  was  a  great  merit ;  and  they  "  assumed  the  virtue, 
though  they  had  it  not."  It  was  proved  before  Mr.  Morrison's  com 
mittee  that  a  homicide  story,  which  included  the  death  of  a  black 
person,  was  thought,  by  some  Republicans,  to  be  as  good  for  the  party 
as  fifty  thousand  dollars  added  to  its  campaign  fund.  *  According  to 
this  valuation,  Sheridan's  collection  of  four  thousand  was  worth  two 
hundred  millions  of  dollars.  The  carpet-bag  officers  did  not  object 
to  the  fictitious  account  of  their  own  bloody  baseness ;  for  it  was  in 
tended  to  keep  them  in  their  places ;  and  if  it  had  that  effect,  they 
were  content  to  be  infamous.  But  how  the  great  leading  statesmen 
of  the  country  ever  came  to  adopt  the  idea  that  the  wickedness  they 
charged  upon  the  carpet-baggers  would,  if  true,  be  a  just  ground  for 
•depriving  the  people  of  the  right  to  vote  them  out,  is  one  of  the  mys 
teries  which  may  possibly  be  solved  hereafter  ;  but  with  the  lights  we 
have  now  it  is  wholly  incomprehensible. 

The  wretched  system  of  carpet-bag  government  could  not  possibly 
last.  From  the  first  it  had  no  real  support.  The  native  people  and 
the  honest  immigrants,  who  went  there  for  purposes  of  legitimate  busi 
ness,  held  it  in  abhorrence,  and  the  negroes  were  not  long  in  finding 
out  that  it  was  a  sham  and  a  snare.  As  early  as  1870,  and  before  that, 
the  handwriting  was  seen  on  the  wall  which  announced  that  a  large 
and  decisive  majority  of  all  the  votes,  black  and  white,  had  determined 
to  break  up  this  den  of  thieves.  They  must  therefore  prepare  for 
flight  or  punishment,  unless  they  could  contrive  a  way  of  defeating 
the  popular  will  whenever  and  however  it  should  be  expressed.  Then 
the  Returning  Board  was  invented. 

This  was  a  machine  entirely  new,  with  powers  never  before  given 
to  any  tribunal  in  any  State.  Its  object  was  not  to  return,  but  to 
suppress,  the  votes  of  the  qualified  electors,  or  change  them  to  suit 
the  occasion.  By  the  terms  of  the  law  it  can  exclude,  suppress,  anni 
hilate,  all  the  votes  of  a  parish  for  violence,  intimidation,  or  fraud, 
which  it  finds  to  have  been  committed  and  adjudges  to  have  materially 
influenced  the  result  of  the  poll.  This  is  judicial  authority  so  broad 

*  Report  of  Mr.  Morrison's  Louisiana  Committee,  February  1,  187Y,  p.  14. 


POLITICAL  ESSAYS  AND  LETTERS.  321 

that  no  court  would  consent  to  exercise  it — inflicting  the  fearful  pen 
alty  of  disfranchisement  upon  thousands  at  once,  without  a  hearing 
and  without  legal  evidence,  not  for  any  offense  of  their  own,  but  for 
the  supposed  sin  of  others  over  whom  they  confessedly  have  no  control. 
Of  course,  it  is  in  direct  conflict  with  the  State  Constitution,  which 
declares  that  all  judicial  power  shall  be  vested  in  certain  ordained  and 
established  courts,  and  forbids  it  to  be  used  even  by  them,  except  upon 
trial  before  a  jury,  and  conviction  on  the  testimony  of  credible  wit 
nesses  confronted  by  the  accused  and  cross-examined  by  counsel.  It 
is,  besides,  a  most  insolent  affront  to  the  fundamental  principles  of  all 
elective  government,  for  it  makes  the  poll  of  the  people  a  mere  mock 
ery,  which  decides  nothing  except  what  the  Returning  Board  is  pleased 
to  approve,  and  elects  nobody  whom  the  Returning  Board  does  not 
graciously  favor.  Its  power  to  veto  a  popular  vote  extends  to  all  elec 
tions,  for  every  class  of  officers,  judicial,  legislative,  ministerial,  and 
executive,  including  electors  of  President  and  Vice-President. 

All  men  will  agree  that  when  violence,  fraud,  intimidation,  etc., 
occur  at  an  election,  some  action  ought  to  be  taken  upon  it  to  bring 
the  offenders  to  justice.  But  this  law  requires  that  the  election  offi 
cers  report  the  fact,  not  to  the  judicial  authorities  of  the  State,  in  order 
that  the  guilty  parties  may  be  tried  and  punished,  but  to  the  Return 
ing  Board,  so  that  it  may  impose  the  penalty  of  disfranchisement  upon 
innocent  citizens  without  trial.  The  slightest  consideration  of  this 
one  provision  shows  that  the  Returning  Board  law  had  no  honest  pur 
pose,  that  it  "was  conceived  in  sin  and  brought  forth  in  iniquity," 
and  that  its  object  was  to  cheat  from  the  beginning. 

No  man  with  sense  enough  to  know  his  right  hand  from  his  left 
will  need  to  be  told  that  a  monstrous  thing  like  this  can  not  be  con 
stitutionally  fastened  upon  a  free  State.  A  government  that  makes 
it  one  of  its  institutions  ceases  to  be  republican,  either  in  form  or  sub 
stance.  The  statute  of  Louisiana  which  undertook  to  create  it  was  a 
mere  nullity,  and  all  its  proceedings  were  destitute  of  legal  authority. 
It  was  at  one  time  asserted  that  the  Supreme  Court  of  the  State  had 
held  it  constitutional  and  valid,  which,  if  true,  would  prove  that  the 
court  was  no  better  than  the  Board  ;  but  the  case  cited  shows  that  no 
such  point  was  raised,  debated,  or  determined. 

The  Board  consisted  of  five  persons.  They  were  originally  ap 
pointed  by  a  carpet-bag  Senate,  without  end  of  their  tenure  and  with 
power  to  fill  vacancies,  which  made  them  a  close  corporation  and  gave 
them  perpetual  succession.  To  put  on  some  show  of  fairness,  the  law 
required  that  all  parties  should  be  represented.  This  was  at  first 
thought  to  be  met  by  the  appointment  of  one  Democrat ;  but  when  a 
deed  of  more  than  common  baseness  was  to  be  done,  the  Democrat 
was  got  rid  of,  and  the  other  four,  desiring  to  work  in  secret,  refused 
to  fill  his  place. 

21 


322  POLITICAL  ESSAYS  AND  LETTERS. 

This  suppressing  Board  did  its  work  thoroughly  from  the  start. 
It  was  never  known  to  falter.  Since  its  first  organization  in  1870,  the 
majority  of  the  whole  people  had  been  decidedly  against  the  carpet 
baggers  at  every  election.  But  the  Board  always  intercepted  the  re 
turns,  and  so  altered  them  as  to  make  a  majority  the  other  way.  Kel 
logg  was  a  candidate  for  Governor ;  he  was  largely  defeated  :  but  the 
Board  certified  him  elected.  The  certificate  was  so  glaringly  false 
that  carpet-baggers  themselves  would  not  help  to  install  him,  and 
Democrats  determined  to  assert  their  rights.  It  was  then  that  General 
Grant,  to  the  unspeakable  shame  of  the  nation,  lifted  him  into  office 
on  the  bayonets  of  the  army.  Afterward  the  outraged  people  rose  in 
revolutionary  wrath,  drove  him  to  shelter  in  the  custom-house,  and 
inaugurated  the  man  they  had  lawfully  elected.  Again  the  President 
made  war  on  the  State,  and  restored  the  usurper  to  the  place  which 
did  not  belong  to  him.  The  Democrats  regularly  elected  a  majority 
of  the  Legislature ;  as  regularly  the  Keturning  Board  certified  a  ma 
jority  of  their  seats  to  carpet-baggers  or  scalawags  or  negroes  not 
chosen  ;  and  when  the  true  members  met  to  organize  for  business  the 
army  was  punctually  on  hand  to  tumble  them  out  of  their  hall. 

Such  was  the  condition  of  things  when  the  parties  took  the  field 
in  1876.  The  Democrats  girded  up  their  loins  for  a  combat  more  im 
portant  to  them  and  their  children  than  any  they  had  yet  been  engaged 
in.  They  were  not  only  to  choose  a  Governor,  Legislature,  and  State 
officers,  but  a  President  and  Vice-President  who  would  respect  their 
rights,  and  not  set  aside  their  election  by  brute  force.  Messrs.  Hayes 
and  Wheeler  were  not  believed  to  be  evil-minded  men,  but  they  be 
longed  to  the  anti-constitutional  party,  and  their  platform  pledged 
them  to  walk  in  the  footsteps  of  Grant ;  while,  on  the  other  hand,  the 
just  support  of  the  people  against  the  lawless  outrages  of  the  carpet 
bag  usurpers  was  written  down  among  the  first  of  the  many  reforms 
which  Messrs.  Tilden  and  Hendricks  would  be  sure  to  introduce.  The 
Democrats  were  without  doubt  a  great  majority  over  the  carpet-bag 
gers  and  the  negroes  who  still  adhered  to  them.  False  voting  or  cheat 
ing  in  the  registration  could  not  defeat  the  true  men  of  the  State.  If 
they  could  only  get  their  votes  honestly  counted,  added  up,  and  cred 
ited  to  their  candidates,  they  would  certainly  be  free  in  the  future 
from  the  tyrannical  domination  which  held  them  in  durance  for  so 
many  years.  They  felt  that  under  these  circumstances  the  electoral 
franchise  was  a  possession  inestimably  precious  : 

"  To  lose  't  or  give  't  away 
Were  such  perdition  as  nothing  else  could  match." 

They  were,  therefore,  uncommonly  cautious  not  to  impair  this  great 
right,  or  endanger  the  success  of  its  exercise,  by  any  act  which  could 
bring  them  under  the  denunciation  of  even  the  Returning  Board  law. 


POLITICAL  ESSA  YS  AND  LETTERS.  323 

All  the  clubs  were  earnestly  and  constantly  exhorted,  in  circulars  and 
otherwise,  to  "be  careful  to  say  and  do  nothing  which  could  be  con 
strued  into  a  threat  or  intimidation  of  any  character,"  and  advised  to 
take  affidavits  on  the  day  of  election  at  each  polling-place  that  no  dis 
turbance  had  occurred  there. 

The  election  came  off  on  the  proper  day,  supervised  and  controlled 
at  every  polling-place  by  officers  of  the  carpet-bag  interest.  According 
to  their  own  count  the  result  was  a  majority  of  7,639  for  the  Tilden 
electors.  It  has  never  yet  been  denied  that  this  majority  was  made 
up  of  ballots  cast  by  citizens  legally  qualified.  The  vote  was  regularly 
taken  and  properly  counted,  and  a  true  record  of  it  made  inperpetuam 
rei  memoriam.  These  facts  being  undisputed,  it  follows  that  the 
Tilden  electors  were  duly  appointed,  if  the  people  of  the  State  have 
the  appointing  power,  which  they  certainly  have,  unless  the  Constitu 
tion  and  the  statute-book  are  not  to  be  relied  on. 

But  the  opponents  of  Tilden  and  Hendricks  determined  that  the 
record  of  the  appointment  made  by  the  people  should  be  mutilated 
and  changed  so  as  to  make  it  appear  as  if  electors  for  Hayes  and 
Wheeler  had  been  chosen.  They  pretended  to  believe  that  violence 
and  intimidation  had  frightened  the  African  Hayes  men  from  the 
polls,  and  that  their  cowardice  ought  to  be  visited  in  the  form  of  dis- 
franchisement  on  the  heads  of  others  who  had  intrepidity  enough  to 
perform  their  political  duty.  The  allegation  was  utterly  false.  It 
was  made,  not  only  without  evidence  to  sustain  it,  but  in  the  face  of 
overwhelming  proof  to  the  contrary.  All  the  places  of  registration 
and  voting  were  guarded  by  the  creatures  of  the  Federal  and  State 
administrations,  superintendents,  commissioners,  deputy  marshals,  and 
soldiers,  and  all  of  these  with  one  voice  said  that  the  elections  were 
peaceable  and  free.  Indeed,  it  is  literally  impossible  that  any  intimi 
dation  or  violence  could  have  been  practiced.  No  sensible  person  ever 
gave  credit  to  it  for  a  moment.  Notwithstanding  much  mental  anxi 
ety  about  the  result,  various  reasons  combined  to  make  the  election  in 
Louisiana  probably  the  most  quiet  and  undisturbed  in  the  Union. 

The  charge  of  actual  intimidation  at  the  polls  having  been  ex 
ploded  almost  as  soon  as  it  was  made,  another  was  tried  which  stood 
a  little  longer.  The  intimidation,  it  was  said,  occurred,  not  at  the 
election,  but  at  other  times  and  elsewhere  :  somebody,  unnamed  and 
unknown,  had  breathed  out  threatenings  and  slaughter  so  violent  that 
many  thousands  absented  themselves.  This  was  vague  enough  to 
excite  a  superstitious  belief  in  the  existence  of  a  "bulldozer,"  whom 
nobody  had  ever  seen  except  as  the  goblin  is  seen  which  the  imagina 
tion  bodies  forth  from  the  evening  mist.  But  it  vanished  into  thin 
air  when  the  truth  appeared  that  this  was  the  largest  vote  ever  given 
in  Louisiana,  larger  in  proportion  to  the  whole  population  than  the 
average  of  all  the  States  in  the  Union. 


324:  POLITICAL  ESSAYS  AND  LETTERS. 

Lastly,  they  fell  back  on  the  naked  fact  that  a  considerable  num 
ber  of  negroes  had  yoted  the  Democratic  ticket,  and  insisted  that  this 
was  in  itself  sufficient  evidence  of  intimidation.  They  built  this  the 
ory  on  the  assumption  that  no  negro  could  ever  be  moved  against  a 
carpet-bagger  except  by  his  personal  fears,  and  that  all  appeals  to  his 
other  passions,  or  to  his  reason  and  conscience,  must  necessarily  be  in 
vain.  In  fact  and  in  truth,  a  large  percentage  of  the  African  popula 
tion  were  from  the  beginning  very  strongly  impressed  against  the 
strangers  who  had  come  into  the  State  to  rob  the  natives.  Most  of 
them  were  very  stupid,  but  many  had  sense  enough  to  see  that  this 
would  come  to  no  good.  They  had  one  cause  of  complaint  which 
influenced  them  strongly.  Much  of  the  ponderous  taxation  under 
which  the  people  suffered  had  been  imposed  on  the  pretense  of  schools 
for  the  elevation  of  the  negro  ;  when  the  fund  came  into  the  hands  of 
carpet-bag  officers  they  stole  it  of  course,  and  left  the  negro  to  his 
aboriginal  ignorance.  The  negroes,  not  liking  this  kind  of  elevation, 
became  excited,  and  in  some  places  large  bodies  of  them  together 
broke  away  from  the  carpet-baggers.  Their  revolt  was  perfectly  nat 
ural  ;  and  it  would  have  been  universal,  if  their  stupidity  had  been 
only  a  little  less  dense.  Yet  it  is  persistently  asserted  in  effect  that 
the  carpet-bagger  owns  the  negro  by  a  title  so  incontestable  that  the 
vote  of  the  latter  is  never  withheld  from  the  former  except  because  of 
bulldozing,  whereby  the  white  Democrat  ought  to  lose  not  only  the 
vote  given  him  by  the  negro,  but  his  own  vote  in  the  bargain. 
This  preposterous  view  pervades  all  the  discussions  on  that  side,  inso 
much  that  the  foremost  Republicans  of  the  country  have  thought 
themselves  making  an  argument  for  disfranchisement  of  Democrats 
by  merely  showing  that  the  vote  for  the  carpet-bag  candidates  fell 
below  the  aggregate  number  of  black  electors  in  a  particular  parish,  or 
was  less  than  that  given  at  some  former  election. 

One  curious  case  of  bulldozing  is  given  by  Mr.  Morrison's  com 
mittee.  The  negroes  of  East  Feliciana  fell  away  in  large  numbers 
from  the  carpet-baggers,  and  so  many  expressed  their  intention  to  vote 
on  the  other  side  that  a  considerable  majority  for  the  Democratic  can 
didates  was  plainly  foreseen.  The  chiefs  of  the  carpet-baggers  at  New 
Orleans,  being  informed  of  this,  instructed  the  local  leaders  of  the 
parish  not  to  vote  ;  no  ticket  was  put  forth  on  their  part ;  not  a  single 
Republican  vote  was  cast,  even  by  the  parish  officers.  This  was  done 
on  purpose  to  lay  the  groundwork  for  a  charge  of  intimidation.  East 
Feliciana  was  declared  a  bulldozed  parish,  and  all  the  people  in  it 
were  disfranchised. 

Even  if  we  assume  the  righteousness  of  the  principle  embodied  in 
the  Louisiana  election  law,  that  one  man  may  be  disfranchised  because 
another  has  intimidated  a  third,  there  was  no  show  of  ground  upon 
which  the  Democratic  majority  could  be  questioned.  The  minority 


POLITICAL  ESSAYS  AND  LETTERS.  325 

therefore  left  the  case  to  the  Returning  Board,  in  full  confidence  that 
it  was  corrupt  enough  to  act  as  desired  without  evidence,  against  law, 
and  in  defiance  of  the  known  truth. 

The  personnel  of  the  Board  justified  the  faith  of  the  carpet-baggers 
and  their  allies.  If  the  evidence  concerning  its  members  be  rightly 
reported  by  the  investigating  committee,  they  were  marked  out  by 
the  history  of  their  previous  lives,  noted  and  signed  to  do  any  deed  of 
shame  which  might  be  required  at  their  hands.*  Wells  was  a  custom 
house  officer  at  New  Orleans,  and  one  of  the  worst  of  that  bad  lot — a 
defaulter  to  the  State  of  long  standing,  without  character  for  integ 
rity  or  veracity,  and  for  thirty  years  regarded  as  unworthy  to  be 
trusted.  Anderson's  character  for  honesty  was  equally  bad  ;  he  had 
earned  it  in  part  by  aiding,  while  he  was  a  Senator,  to  put  up  a  fraudu 
lent  job  upon  the  State,  and  taking  the  iniquitous  proceeds  to  himself. 
Of  the  two  mulattoes,  one  was  indicted  for  larceny,  and,  after  admit 
ting  his  guilt,  was  allowed  to  escape  punishment,  and  promptly  taken 
into  the  Board.  The  other  was  too  ignorant  to  know  his  duty,  but 
his  testimony  showed  such  indifference  to  the  obligations  of  an  oath 
that  he  was  deemed  as  safe  for  the  carpet-baggers  as  either  of  his  col 
leagues. 

They  comprehended  the  situation,  saw  the  difficulty  of  the  work 
before  them,  and  resolved  to  make  it  pay  in  something  better  than 
mere  promises  of  "recognition,"  however  "generous  and  ample." 
Wells,  who  was  their  spokesman,  in  private  as  in  public,  wrote  in 
strict  confidence  to  a  carpet-bag  Senator  then  at  Washington  a  letter 
which,  being  condensed  into  plain  English,  means  this  :  f  "  There's 
millions  in  it.  See  our  friends  and  act  promptly.  Buy  us  immedi 
ately,  or  we  will  sell  out  to  the  other  side.  Talk  freely  to  the  gentle 
man  who  presents  this  ;  he  knows  the  moves."  To  the  bearer  of  the 
letter  he  explained  that  it  was  very  hard  work  to  count  in  the  Repub 
lican  candidate — the  Democratic  majority  was  too  large  to  handle ; 
he  wanted  to  serve  his  party,  but  he  would  not  take  this  job  without 
compensation  :  he  must  have  "two  hundred  thousand  dollars  apiece 
for  himself  and  Anderson,  and  a  smaller  sum  for  the  niggers."  On 
this  basis  he  authorized  his  embassador  at  Washington  to  negotiate 
with  the  Republican  managers.  J  At  the  same  time  he  was  offering 
himself  at  New  Orleans  to  the  Democrats,  at  first  for  half  a  million, 
but  afterward  proposed  that  he  would  leave  in  enough  votes  to  elect 
Mr.  Nicholls  (Democratic  candidate  for  Governor)  if  two  hundred 
thousand  dollars  cash  were  first  placed  in  his  hands.* 

The  Board,  getting  hold  of  the  returns  under  the  election  law, 

*  Report  of  Mr.  Morrison's  Louisiana  Committee,  February  1,  1877,  p.  7. 

f  See  the  letter  in  Rep.  Select  Com.  on  Powers  and  Priv.,  Feb.  1,  1877,  p.  180. 
:f  Rep.  Com.  Priv.  Powers,  pp.  144,  145. 

*  Rep.  Com.  Priv.  Powers,  p.  382. 


326  POLITICAL  ESSAYS  AND  LETTERS. 

proceeded  to  alter  them  in  such  manner  as  to  bring  out  a  result  totally 
false.  They  averred  that  the  Eepublican  or  carpet-bag  candidates  for 
'Governor,  Lieutenant-Governor,  and  for  electors  of  President  and 
Vice-President,  and  all  State  officers  had  a  majority  of  the  votes,  and 
finally  declared  their  election  in  formal  certificates.  It  was  not  a  mis 
take.  As  a  mere  blunder  it  was  impossible.  If  they  had  been  "fools 
as  gross  as  ever  ignorance  made  drunk,"  they  could  not  have  been  led 
into  any  error  about  it.  It  was  without  doubt  the  work  of  a  pre 
arranged  conspiracy  to  cheat  the  people  of  the  State  and  the  Union. 
The  proofs,  direct  and  circumstantial,  that  it  was  dishonest,  corrupt, 
and  fraudulent,  are  so  numerous  and  so  irresistibly  strong,  that  no 
man  can  stand  up  and  deny,  it,  unless,  in  the  language  of  Mr. 
O'Conor,  he  "has  lost  the  faculty  of  blushing."  In  branding  this 
transaction  with  utter  and  irredeemable  infamy,  the  Democracy  have 
not  spoken  without  the  book — nay,  not  without  many  books  ;  for  is  it 
not  written  on  all  the  records  of  Congress  ?  Is  it  not  reported  by 
numerous  committees  ?  Is  it  not  attested  by  clouds  of  witnesses  ? 
Is  it  not  proved  by  papers  which  the  conspirators  themselves  have 
made  ? 

The  action  of  the  returning  officers  in  this  whole  business  was  un 
supported  by  legal  authority.  The  Legislature  of  the  State  did  not, 
because  it  could  not,  give  them  power  to  disfranchise  qualified  elect 
ors.  They  lacked,  therefore,  the  general  jurisdiction  which  they 
assumed.  But  that  is  not  all :  they  proceeded  in  the  very  teeth  even 
of  the  void  statute  which  they  professed  to  follow.  That  statute  pre 
tends  to  give  them  no  such  authority  as  they  exercised  over  any  return 
to  which  a  protest  or  statement  or  charge  of  intimidation  is  not  at 
tached,  when  it  is  sent  in  by  the  Supervisor  of  Eegistration,  or  the 
Commissioner  of  Election,  and  the  charge  so  attached  to  the  return 
must  be  supported  by  the  affidavits  of  three  citizens  of  the  proper 
parish. 

Wanting  this,  the  Board  was  absolutely  without  the  pretense  of 
power  to  touch  the  return  from  any  parish  or  polling-place,  except 
for  the  purpose  of  compiling  it,  and  adding  it  as  true  to  the  others. 
By  the  election  law  of  Louisiana,  the  Board  has  no  more  authority  to 
examine  or  decide  a  question  of  intimidation,  which  is  not  raised  by 
the  election  officers,  than  a  private  individual  would  have  to  steal  it 
from  the  records  and  burn  it.  So  stands  the  law.  The  fact  is  estab 
lished,  by  conclusive  evidence,  that  from  every  one  of  the  Democratic 
parishes  the  returns  came  up  without  any  charge,  statement,  or  pro 
test.  In  all  those  cases  they  were,  therefore,  without  color  of  jurisdic 
tion.*  But  the  conspirators  could  not  afford  to  be  balked  of  their 

*  If  any  one  doubts  this  proposition,  let  him  look  at  Senator  Bayard's  elaborate  ex 
position  of  it,  where  he  will  find  it  established  by  such  unanswerable  reasoning,  and  such 
a  wealth  of  authority,  that  perversity  itself  will  admit  the  law  to  be  as  he  lays  it  down. 


POLITICAL  ESSAYS  AND  LETTERS.  327 

game  by  the  failure  of  the  local  officers  to  make  a  false  charge  of  in 
timidation.  These  votes  must  be  excluded  per  fas  aut  nefas,  and  the 
Returning  Board  must  do  it ;  that  was  what  the  Board  was  made  for. 
The  returning  officers  went  upon  the  principle  aut  inveniam  aut  fa- 
dam.  They  made  the  protests  which  they  could  not  find  ;  affidavits 
which  no  creature  in  the  parishes  was  base  enough  to  back  with  his 
oath  were  fabricated  in  the  custom-house,  and  used  by  the  Board 
with  a  full  knowledge  that  they  were  mere  counterfeits.  The  exclu 
sion  of  returns  on  the  ground  of  intimidation  was  in  every  case  dis 
honest,  for  in  none  was  there  a  particle  of  evidence  to  justify  it. 
When  nothing  else  would  serve  the  purpose,  they  did  not  scruple  a 
resort  to  plain  forgery,  Of  the  return  from  Vernon  Parish,  every  fig 
ure  on  the  whole  broad  sheet  was  altered,  with  elaborate  pains,  under 
the  special  direction  of  Wells.  Perjury  and  subornation  of  perjury 
entered  largely  into  the  business.  There  is  hardly  any  species  of  the 
crimenfalsi  for  which  the  law  has  a  punishment  that  did  not  become 
an  elementary  part  of  the  Great  Fraud  which  was  committed  when 
the  defeated  electors  and  State  officers  of  Louisiana  were  falsely  certi 
fied  as  chosen  by  the  people. 

It  seems  necessary  and  proper — but  it  is  difficult — to  say  what 
judgment  should  be  given  on  the  conduct  of  the  distinguished  Repub 
lican  gentlemen,  headed  by  Senator  Sherman,  who  went  to  Louisiana 
to  see  the  count  made.  Were  they  accomplices  in  the  crime  of  the 
Returning  Board  ?  Whosoever  wishes  to  answer  this  question  fairly, 
must  remember  that  he  is  speaking  of  men  who  stand  high,  not  for 
talents  alone,  but  for  all  the  virtues  which  win  public  confidence  and 
inspire  general  respect.  All  presumptions  are  in  their  favor  ;  nothing 
can  be  justly  concluded  against  them  except  from  the  clearest  proof. 
It  must  therefore  be  considered  as  settled  that  they  had  no  connection 
with  the  forgeries  of  particular  return  papers  or  with  the  perjuries  of 
the  custom-house ;  if  Wells  was  bought  with  anything  beyond  the 
promise  of  "  recognition,"  they  had  nothing  to  do  >with  the  bribery  ; 
no  knowledge  of  these  specific  offenses  has  been  traced  to  them.  But 
they  might  have  caused  a  true  count  of  the  votes  if  they  had  wished 
it ;  one  word  of  honest  reprobation  from  them  would  have  paralyzed 
the  rascality  of  the  Returning  Board.  If  they  had  complied  with  the 
requests  of  the  Democrats,  to  use  their  joint  influence  for  justice  and 
truth,  the  conspiracy  would  have  broken  up  in  an  hour.  They  did 
undoubtedly  know,  what  everybody  else  knew,  that  the  Tilden  electors 
had  been  duly  appointed  by  a  majority  of  nearly  eight  thousand  votes 
legally  cast ;  they  could  not  help  but  see  that  at  least.  And  they 
must  have  known  that  no  just  reason  and  no  legal  authority  existed  to 
alter  this  result  or  falsify  the  record  which  proved  it.  Yet  they  re 
fused  to  open  their  lips  for  the  right  of  the  people  to  choose  their  own 
agents  ;  asserted  the  constitutional  power  of  the  returning  officers  to 


328  POLITICAL  ESSAYS  AND  LETTERS. 

disfranchise  qualified  voters  ;  comforted  these  miscreants  with  the  as 
surance  of  their  defense — did,  in  fact,  defend  them  even  to  the  extent 
of  pronouncing  extravagant  eulogies  upon  them  ;  in  short,  encour 
aged,  aided,  and  abetted,  by  every  means  in  their  power,  the  perpetra 
tion  of  the  Great  Fraud,  and  after  it  was  done  held  it  up  as  a  right 
eous  act. 

These  gentlemen  probably  have  some  excuse  for  their  behavior 
which  has  not  yet  appeared.  The  presidency,  all  the  jobs  and  offices 
of  the  Union,  and  four  years  of  exemption  from  the  hand  of  Tilden's 
sweeping  reform,  depended  upon  the  game  they  were  playing.  The 
stake  being  so  heavy,  and  the  dice  ready  loaded  to  their  hand,  the 
temptation  to  a  foul  throw  was  very  severe.  Perhaps  it  is  too  much 
to  expect  that  a  body  of  politicians  in  these  degenerate  days  should  act 
with  scrupulous  honesty,  like  the  men  who  filled  high  stations  in  early 
times.  The  false  philosophy  of  Seneca,  that  all  immoralities  are 
justified  when  done  regnandi  causa,  gains  ground  upon  us  rapidly. 
The  rules  which  meet  with  universal  observance  in  private  affairs  are 
set  at  naught  in  political  action.  Election  frauds  are  practiced  by 
men  who  would  not  cheat  in  a  horse-trade  ;  bogus  returns  are  palmed 
off  as  true  by  those  who  would  scorn  to  pass  counterfeit  money  ;  and 
Christian  statesmen  are  not  expected  to  know  that  stealing  the  vote 
of  a  State  comes  within  the  prohibition  of  the  eighth  commandment. 

But  they  do  not  measure  their  conduct  by  a  safe  standard  if  they 
think  it  right,  under  any  circumstances,  to  cheat  a  self-governing 
nation  by  nullifying  the  legal  vote  of  its  people.  No  matter  how 
little  respect  they  may  have  for  the  judgment  of  the  mass,  conceding 
that  our  naturalization  laws  are  too  liberal,  and  negro  suffrage  wholly 
unwise,  it -must  still  be  remembered  that  this  right  of  voting  lies  at 
the  foundation  of  our  political  structure.  We  have  no  public  institu 
tions  that  are  not  built  upon  that.  Our  Ship  of  State  has  no  other  keel, 
and  the  perfidy  that  scuttles  the  bottom  exposes  cargo,  crew,  and  pas 
sengers  to  utter  destruction.  Besides,  we  have  all  agreed  with  one  an 
other  that  the  will  of  the  whole  people,  as  a  collective  body,  shall  be 
spoken  by  the  major  number  of  individuals  :  we  promised  and  swore 
that  we  would  be  governed  by  that  will.  If  we  violate  this  solemn 
compact,  we  are  covenant-breakers,  and  can  expect  only  to  be  turned 
out  among  "  the  nations  which  know  not  God."  Moreover,  taking  the 
lowest  possible  view  of  the  subject,  and  considering  a  presidential 
election  as  a  mere  game  of  skill  or  hazard,  ha  must  be  regarded  as  a 
political  black-leg  who  snatches  and  makes  off  with  the  stakes  he  has 
lost  according  to  the  rules. 

Another  question  rises  here,  which  the  Muse  of  History  may  an 
swer  at  her  leisure  :  Is  there  any  justification  of  General  Grant's  con 
duct  in  this  business  ?  Within  two  or  three  days  after  the  election  it 
became  perfectly  well  known  to  the  whole  country  that  in  Louisiana 


POLITICAL  ESSA  YS  AND  LETTERS.  329 

there  had  been  a  full  poll,  and  a  large  majority  for  the  Tilden  electors. 
No  reason  was  suggested  by  anybody  for  falsifying  this  result.  The  ap 
prehension  that  it  would  be  falsified  in  the  return  arose  slowly  out  of  the 
fact  that  the  election  machinery  of  the  State  was  in  the  hands  of  mere 
knaves  who  were  just  base  enough  to  do  it ;  and  these  were  General 
Grant's  own  knaves,  whom  for  years  he  had  kept  in  their  places  by 
lawless  force.  It  was  then  that  he  said  no  man  could  afford  to  be 
President  by  a  fraud,  and  sent  a  committee  to  see  that  a  true  count 
was  made.  This  was  fair-seeming  enough;  but  he  did  not  row  the  way 
he  was  looking.  Every  one  of  his  committee  favored  the  fraud,  and 
their  report,  which  he  indorsed  and  sent  to  Congress,  was  a  defense  of 
it  from  beginning  to  end.  He  had  supported  and  enforced  frauds  of 
the  same  kind  several  times  before,  and  now  his  troops  were  at  New 
Orleans  avowedly  to  protect  the  carpet-baggers  while  they  were  re 
peating  them  on  a  large  scale.  Besides,  when  Chandler  promised  the 
fraudulent  Governor  of  Florida  to  send  troops  and  money  to  that 
State  after  the  election — troops  and  money  to  count  the  votes — he 
declared  in  one  of  his  dispatches  that  the  President  had  been  con 
sulted.  Still  further,  while  his  party  in  Congress  were  holding  up 
the  fraud,  he  answered  the  arguments  in  favor  of  Tilden's  right  by 
ordering  to  the  capital  all  the  cavalry,  artillery,  and  infantry  within 
reach.  Whether  these  circumstances  be  sufficient  or  not  to  convict 
him  of  participation  in  the  fraud,  let  the  world  judge. 

When  the  wrong  was  accomplished  at  New  Orleans — when  the  Ee- 
turning  Board  had  suppressed  the  Democratic  majority,  and  Kellogg 
certified,  what  he  knew  to  be  false,  that  he  himself  and  seven  other 
men  of  the  same  sort  were  chosen  by  the  people  as  electors  of  Presi 
dent  and  Vice- President ;  when  these  false  pretenders  actually  met  as 
electors,  made  out  and  sent  to  Washington  their  own  vote,  to  be 
counted  as  the  vote  of  the  State— nobody  except  those  engaged  in  it 
had  the  least  belief  that  such  a  swindle  could  ever  succeed.  Demo 
cratic  denunciation  was  loud,  to  be  sure,  but  quiet,  unpartisan  people 
laughed  at  the  folly  of  it.  A  little  while  afterward  the  aspect  of 
things  changed  materially.  The  country  was  astounded  to  discover 
that  the  commanders  of  the  Eepublican  forces  had  made  up  their 
minds  to  carry  it  through  if  they  could.  It  would  be  unjust  to  say 
that  this  resolution  was  unanimous.  Several  members  of  the  lower 
house  expressed  their  decided  opposition  to  it.  An  unascertained 
number  of  Senators,  including  the  ablest  Republicans  in  the  body,  are 
well  understood  to  have  been  altogether  averse ;  but,  not  seeing  the 
way  of  resistance  open,  they  were  silent,  and  permitted  the  dead 
weight  of  their  influence  to  lie  on  the  fraudulent  side  of  the  scale. 
Some  of  the  foremost  journals  of  the  administration  party  denounced 
it  in  unequivocal  terms,  as  did  also  the  whole  independent  press.  The 
great  lawyers  of  the  Republican  party  would  not  endure  it ;  for  in- 


330  POLITICAL  ESSAYS  AND  LETTERS. 

stance,  Mr.  Carpenter,  of  "Wisconsin,  and  Mr.  Field,  of  New  York,  who 
had  voted  against  Tilden,  assaulted  the  foul  conspiracy  with  the  whole 
force  of  their  logic  and  eloquence.  But  the  fraud  was  defended  "by 
men  whom  the  party  was  accustomed  to  obey,  the  mutinous  were 
brought  under  control,  the  indifferent  were  quickened  into  active 
participation,  and  "  lewd  fellows  of  the  baser  sort "  rushed  to  the 
work  as  to  a  labor  of  love.  So  it  came  to  pass  that  a  great  politi 
cal  party,  comprising  American  citizens  of  all  the  best  classes,  was 
thrown  with  nearly  its  whole  momentum  of  weight  and  velocity 
upon  the  side  of  a  manifest  and  most  notorious  swindle.  To  the  im 
mortal  honor  of  the  Democracy,  not  one  of  its  men  in  any  part  of 
the  country  shrunk  from  his  duty  or  wavered  in  his  allegiance  to  the 
truth, 

But  how  was  the  object  of  the  conspiracy  to  be  accomplished  ? 
The  House  of  Kepresentatives  was  Democratic,  and  without  its  con 
sent,  expressed  or  implied  in  some  form  or  another,  the  Senate  could 
not  give  effect  to  a  false  count.  The  first  intention  was  to  claim  that 
the  President  of  the  Senate  had  power  to  determine  absolutely  and 
arbitrarily  what  electoral  votes  should  be  counted  and  what  not.  This 
was  the  great  rallying-point  until  Mr.  Conkling  took  it  up,  and,  in  a 
speech  of  surpassing  ability,  utterly  demolished  and  reduced  it  to  in 
visible  atoms.  It  became  settled,  therefore,  that  the  two  houses  must 
count  the  votes,  and  this  clearly  implied  the  power  to  inquire  and 
determine  what  were  votes.  It  could  not  be  denied  that  the  voice  of 
the  House  of  Representatives  was  at  least  as  potential  as  that  of  the 
Senators  ;  and  it  was  not  supposed  that  the  House  would  suffer  a  fraud 
so  glaring  as  this  to  be  thrust  down  the  throat  of  the  country  "against 
the  stomach  of  its  sense."  But  if  the  two  bodies  would  declare  incon 
sistent  results  of  the  count,  and  proclaim  the  election  of  different 
Presidents,  a  state  of  things  might  come  which  would  subject  our 
institutions  to  a  strain  severe  enough  to  endanger  them  greatly.  It 
was  in  these  difficult  circumstances  that  a  mixed  commission  of  fifteen 
was  proposed,  consisting  of  five  Senators,  five  Representatives,  and  five 
Judges  of  the  Supreme  Court.  The  mode  of  appointing  them  made 
it  certain  that  fourteen  would  be  equally  divided  between  the  parties  ; 
and,  as  the  fifth  Judge  would  be  named  by  the  consent  of  his  brethren 
on  both  sides,  he  might  be  expected  to  stand  between  them,  like  a 
daysman,  with  a  hand  as  heavy  on  one  head  as  the  other.  The  Demo 
crats  consented  to  this  in  the  belief  that  no  seven  Republicans  could 
be  taken  from  the  court  or  from  Congress  who  would  swear  to  decide 
the  truth  and  then  uphold  a  known  fraud  ;  if  mistaken  in  that  opin 
ion  of  their  adversaries'  honesty,  they  felt  sure,  at  all  events,  that  the 
umpire  would  be  a  fair-minded  man.  They  were  bitterly  disappointed  ; 
the  Commission  went  eight  to  seven  for  the  Great  Fraud  and  all  its 
branches  ;  for  fraud  in  the  detail  and  in  the  aggregate  ;  for  every  item 


POLITICAL  ESSAYS  AND  LETTERS.  331 

of  fraud  that  was  necessary  to  make  the  sum  total  big  enough — eight 
to  seven  all  the  time. 

We  must  look  at  the  state  of  the  case  as  it  went  before  the  Com 
mission.  Tilden  and  Hendricks  had  184  electoral  votes  clear  and 
free  of  all  dispute,  one  less  than  a  majority  of  the  whole  number. 
They  also  had  in  Louisiana  eight,  and  in  Florida  four,  appointed 
by  the  people,  but  falsely  certified  to  Hayes  and  Wheeler  by  the 
Governors.  In  Oregon  they  had  one  certified  by  the  Governor,  but 
against  whom  a  popular  majority  had  been  cast  for  an  ineligible 
candidate.  To  elect  Hayes,  it  was  necessary  that  each  and  every  one 
of  these  thirteen  votes  should  be  taken  from  Tilden  and  given  to 
Hayes.  As  this  required  many  distinct  rulings  based  upon  contra 
dictory  grounds,  the  path  of  the  Commission  was  not  only  steep,  but 
crooked. 

The  great  and  important  duty  cast  upon  the  Commission  by  a 
special  law  and  by  a  special  oath  of  each  member  was  to  decide,  in  the 
case  of  contested  votes  from  a  State,  "whether  any  and  what  votes 
from  such  State  are  the  votes  provided  for  ~by  the  Constitution  of  the 
United  States,  and  how  many  and  what  persons  were  duly  appointed 
electors  in  such  State."  It  is  not  denied  that  the  sole  power  of  ap 
pointing  electors  for  the  States  of  Louisiana  and  Florida  is  in  the 
people.  It  was  then  and  still  is  an  admitted  fact  that  the  people  had 
exercised  the  power  of  appointment  in  the  prescribed  and  proper  way  ; 
they  did  duly  make  an  appointment  of  electors,  and  their  act  was  duly 
recorded,  and  so  made  a  perpetual  memory.  This  thing  was  not  "done 
in  a  corner"  ;  it  was  "seen  and  known  of  all  men."  That  each  of  the 
two  States  named  had  duly  appointed  Tilden  electors  at  a  regular  elec 
tion  called  for  that  purpose  on  the  7th  of  November,  in  pursuance  of 
law,  was  a  part  of  their  history  as  much  as  the  fact  that  they  were 
States  of  the  Union.  All  the  members  of  the  Commission  knew  it  as 
well  as  they  knew  the  geographical  position  of  Tallahassee  or  New  Or 
leans.  It  needed  no  proof ;  but  if  specific  evidence  had  been  required, 
there  was  the  record,  from  which  the  truth  glared  upon  them  as  clear 
as  the  sun.  They  shut  their  eyes  upon  the  record,  and  refused  to  see 
"  how  many  and  what  persons  were  duly  appointed  electors  "  by  the 
people,  but  listened  eagerly  to  the  evidence  (aliunde  though  it  was) 
which  showed  "  how  many  and  what  persons  "  had  been  designated 
by  the  returning  officers.  It  was  ultimately  held  (eight  to  seven)  that 
the  appointees  of  the  Returning  Board  were  duly  appointed,  and  the 
appointees  of  the  people  were  unduly  appointed.  Did  the  Eight  sup 
pose  that  the  legal  power  to  make  such  an  appointment  was  vested  by 
law  in  the  Returning  Boards  ?  Did  they  think  it  was  not  vested  in 
the  people?  No,  that  is  impossible.  But  they  may  have  conscien 
tiously  believed  that  the  interest  of  their  faction  would  be  well  served 
by  Hayes's  election.  They  may  have  been  prompted  by  a  virtuous 


332  POLITICAL  ESSA  YS  AND  LETTERS. 

admiration  of  carpet-bag  government,  and  were  sincerely  anxious  to 
save  it  from  Tilden's  reform. 

But  this  decision  in  favor  of  fraud  which  so  shocked  the  common 
sense  and  common  honesty  of  the  nation  was  not  made  without  some 
attempt  to  justify  it.  The  Eight  gave  reasons  so  many  and  so  plausi 
ble  that  Kellogg  and  Wells  must  have  chuckled  with  delight  when 
they  heard  them.  One  argument  very  seriously  urged  was  that  it 
would  be  troublesome,  and  require  a  great  deal  of  time,  to  ascertain 
who  was  duly  appointed  by  the  people.  It  was  much  easier  to  accept 
the  false  vote  and  say  no  more  about  it.  To  decide  how  many  and 
what  persons  got  certificates  from  the  Keturning  Board  was  a  short 
and  simple  process  ;  but  to  push  the  inquiry  behind  that — to  inquire 
whether  the  certificate  was  honest,  to  look  for  the  evidence  which 
would  show  who  were  duly  appointed — Me  labor  hoc  opus  est.  The 
Seven  reminded  the  Eight,  but  reminded  them  in  vain,  that  the  due 
appointment  which  nobody  in  the  world,  except  the  people,  had  the 
least  right  to  make,  was  the  very  thing  which  they  were  there  to  find 
out ;  and  they  could  not  be  excused  from  a  duty  to  which  they  were 
pledged  and  sworn  by  the  mere  inconvenience  of  performing  it.  Be 
sides,  the  Eight  knew  very  well  that  there  was  no  difficulty  in  it ;  it 
was  but  looking  at  the  record  of  the  appointment  as  the  people  made 
it  up  ;  they  could  read  it  as  they  ran  ;  the  truth  was  plainer  than  the 
lie  ;  the  honesty  of  the  case  was  as  easily  seen  as  the  fraud.  But  no 
persuasion  could  influence  them  to  cast  even  a  glance  at  the  actual 
appointment.  What  did  they  think  this  Commission  was  made  for  ? 
Why  was  this  great  combination  of  learning  and  statecraft  set  up  ? 
According  to  the  Eight,  its  sole  purpose  was,  not  to  determine  any 
matter  in  dispute  between  the  parties,  but  merely  to  declare  that  the 
Returning  Boards  had  certified  for  the  Hayes  electors ;  which  every 
body  knew  already  and  nobody  ever  denied.  If  its  object  was  what 
the  law  said — to  decide  who  were  duly  appointed — then  the  Eight  suc 
ceeded  in  making  it  merely  a  splendid  abortion,  because,  among  other 
reasons,  it  was  too  much  trouble  to  make  it  anything  else. 

But  the  Commission,  following  the  lead  of  counsel  for  Mr.  Hayes, 
insisted  that  the  certificate  of  the  proper  State  officer  ought  to  be  re 
garded  as  conclusive  evidence  of  the  appointment  made  by  the  people. 
It  is  undoubtedly  true  that  the  State  has  a  right  to  speak  on  this  sub 
ject  through  her  own  organs,  and,  when  she  does  so  speak,  her  voice 
should  be  regarded  as  true.  But  what  officer  is  her  proper  organ  ? 
The  Governor  being  her  political  chief,  and  his  certificate  being  re 
quired  by  act  of  Congress,  it  would  not  have  been  unreasonable  to  hold 
that  it  was  conclusive  unless  tainted  with  fraud.  The  Hayes  electors 
had  the  Executive  certificate  in  Louisiana  and  Florida,  and  this  in  re 
gard  to  those  States  gave  the  Eight  a  great  legal  advantage.  But  they 
threw  it  away,  abandoned  the  attestation  of  the  Governor  as  worthless, 


POLITICAL  ESSAYS  AND  LETTERS.  333 

claimed  no  faith  or  credit  for  it,  and  pronounced  it  open  to  contradic 
tion,  no  matter  how  honestly  it  may  have  been  given.  What  was  the 
meaning  of  this  phenomenal  ruling  which  apparently  opened  the  door 
of  investigation  even  wider  than  the  Democrats  asked  ?  It  was  under 
stood  by  everybody.  The  Commission  was  hedging  for  Oregon.  The 
Eight  were  reaching  across  to  the  Pacific  for  the  one  vote  there,  which 
was  just  as  important  as  the  twelve  on  the  Gulf  of  Mexico. 

But  having  gone  behind  the  Governor's  certificate  for  the  sake  of 
correcting  errors,  could  there  be  any  possible  justification  for  stopping 
before  the  truth  was  reached  ?  If  the  head  of  the  Commonwealth, 
whose  attestation  is  required  by  Federal  law,  went  for  nothing  when 
ever  it  was  contradicted,  how  could  the  conclusiveness  be  asserted  of 
a  paper  made  by  subordinate  officers  unknown  outside  of  the  State, 
and  powerless  even  by  the  local  law  to  make  a  certificate  of  more  than 
prima  facie  validity  ?  Yet  the  Electoral  Commission  (eight  to  seven) 
decided  that  the  Governor's  certificate  might  be  set  aside  for  a  mere 
mistake  of  law  or  fact,  while  that  of  the  Returning  Board  would  stand, 
though  known  to  be  founded  on  falsehood  and  saturated  all  through 
with  corruption. 

The  unvarying  preference  of  the  eight  Commissioners  for  the  false 
over  the  true  becomes  very  striking  at  this  point.  When  they  got  be 
hind  the  Governor's  papers,  they  found  lying  aliunde  two  other  sets 
of  documents,  one  of  which  was  a  record  of  the  actual  appointment 
made  by  the  people,  the  other  was  a  mere  fabrication  of  the  Returning 
Board  without  any  semblance  of  truth  ;  they  embraced  the  latter  with 
all  the  ardor  of  sincere  affection,  and  rejected  the  former  with  all  pos 
sible  marks  of  their  dislike.* 

To  give  the  decrees  of  the  Returning  Boards  the  conclusive  effect 
claimed  for  them,  it  was  necessary  to  hold  that  they  were  legally 
invested  with  judicial  powers,  and  that  their  jurisdiction,  whether 
rightly  or  erroneously  exercised,  was  absolute  over  the  whole  subject- 

*  The  point  contended  for  by  Mr.  Hayes's  counsel,  and  decided  in  their  favor  by  the 
Commission,  was  that  no  evidence  could  be  received  except  the  report  of  the  Returning 
Board  as  to  the  actual  result  of  the  election.  The  Commission  positively  refused  the 
offer  of  Mr.  Tilden's  counsel  to  prove  the  facts,  and  would  not  receive  or  look  at  the  evi 
dence  showing  that  by  the  precinct  and  county  certificates  on  which  the  board  acted  the 
majority  was  for  the  Tilden  electors.  Yet  the  "  Congressional  Record  "  of  February  6, 
1877,  p.  29,  represents  that  Mr.  Hayes's  counsel  on  the  trial  read  to  the  tribunal  several 
alleged  computations  of  the  vote  cast  at  the  election,  to  show  that  the  Hayes  electors 
had  in  fact  the  majority.  These  computations,  so  read,  were  taken  from  a  report  made 
to  the  House  of  Representatives  by  the  Republican  minority  of  its  committee.  If  this 
be  true,  then  the  Commission  received  evidence  aliunde  to  bolster  up  the  certificate  of 
the  Returning  Board,  while  it  refused  to  look  at  that  which  would  have  overthrown  it  by 
proving  its  entire  falsehood.  Mr.  O'Conor  thinks  that  this  misrepresents  the  facts  of 
the  trial,  and  that  it  is  an  interpolation  upon  the  record  intended  to  pervert  the  truth 
of  history. 


334:  POLITICAL  ESSAYS  AND  LETTERS. 

matter.  In  Florida  the  statute  which  creates  the  Board  gave  it  noth 
ing  except  ministerial  powers,  and  the  Supreme  Court  of  that  State 
solemnly  pronounced  its  claim  of  judicial  authority  to  be  altogether 
unfounded.  But  the  Electoral  Commission  would  not  be  influenced 
by  either  the  written  or  the  unwritten  law.  The  Commission  conceded 
to  the  Louisiana  Board  all  the  judicial  power  it  needed  to  sanctify 
its  disfranchisement  of  the  people  in  the  face  of  the  Constitution, 
which  expressly  forbade  it.  This  general  jurisdiction  was  not  all  they 
bestowed  on  those  boards ;  they  declared  in  substance  that  it  might 
be  well  exercised  in  particular  cases  where  it  was  not  invoked  accord 
ing  to  the  law  which  gave  them  being,  as,  for  instance,  where  a  Louisi 
ana  parish  sent  up  its  return  without  a  protest,  statement,  or  affidavit. 

The  eight  Commissioners  did  not  stop  there.  They  went  much 
further.  They  practically  justified  and  sustained  all  the  infinite  ras 
cality  of  the  Returning  Boards.  They  not  only  refused  to  take  vol 
untary  notice  of  the  atrocious  frauds  perpetrated  by  them,  but  they 
excluded  the  proofs  of  their  corruption  which  the  Democratic  counsel 
held  in  their  hands  and  offered  to  exhibit.  These  Commissioners 
choked  off  the  evidence,  and  smothered  it  as  remorselessly  as  Wells 
and  his  associates  suppressed  Democratic  returns.  And  this  they  put 
on  the  express  ground  that  to  them  it  was  all  one  whether  the  action 
of  these  boards  was  fraudulent  or  not.  They  would  suffer  no  proof 
of  corruption  to  invalidate  the  right  claimed  by  a  Hayes  man  to  put 
in  the  vote  of  a  State  for  his  candidate. 

This  monstrous  and  unendurable  outrage  was  resisted  to  the  ut 
most.  All  of  the  Seven  implored  and  protested  against  it.  Judge 
Clifford,  the  President  of  the  Commission,  laid  it  down  as  a  maxim 
of  the  common  law  that  fraud  vitiates  whatever  it  touches,  and  proved 
it  undeniably.  He  might  have  proved  more.  It  is  not  merely  a 
maxim  of  the  common  law  :  it  belongs  to  all  countries  and  all  ages ; 
no  code  can  claim  it  exclusively ;  it  pervades  all  systems  of  jurispru 
dence  ;  it  has  its  home  in  every  honest  heart ;  it  is  the  universal  senti 
ment  of  all  just  men  ;  it  applies  to  all  human  dealings.  Judge  Field 
looked  in  the  face  of  the  majority,  and  told  them  plainly  that  their 
disregard  of  this  great  principle  was  "as  shocking  in  morals  as  it  was 
unsound  in  law,"  and  added  :  "  It  is  elementary  knowledge  that  fraud 
vitiates  all  proceedings,  even  the  most  solemn  ;  that  no  form  of  words, 
no  amount  of  ceremony,  no  solemnity  of  proceeding,  can  shield  it 
from  exposure,  or  protect  its  structure  from  assault  and  destruction." 
But  the  Eight  were  as  deaf  as  adders  to  the  voice  of  reason  and  justice. 
They  would  not  permit  the  fraud  to  be  assaulted,  much  less  to  be 
destroyed.  They  stood  over  it  to  shield  it,  protect  it,  and  save  it,  in 
terposing  the  broad  aegis  of  their  authority  to  cover  it  against  every 
attack. 

The  Eight  persistently  denied  their  power  or  that  of  Congress  to 


POLITICAL  ESSAYS  AND  LETTERS.  335 

do  what  they  were  commanded  by  the  law  to  do — that  is,  decide  who 
were  duly  appointed.  They  would  only  decide  that  certain  persons 
were  named  as  electors  by  a  Eeturning  Board.  They  would  not  under 
stand  that  the  appointment  by  the  people  might  be  one  thing  and  the 
action  of  the  Eeturning  Board  another,  or  that  the  latter,  even  as  evi 
dence  of  the  former,  was  worthless  if  it  was  fraudulent. 

They  insisted  that  the  Returning  Board  certificate  must  be  received 
with  all  the  honors  ;  to  question  its  verity  would  be  usurpation  upon 
State  rights  which  they  (the  Eight)  were  most  careful  to  preserve  in 
tact  and  unimpaired.  "But,"  said  they,  "if  a  Returning  Board  be 
haves  unfaithfully,  the  State  herself,  by  her  own  authorities,  must  see 
to  it  and  correct  the  wrong."  Thereupon  came  Florida,  and  showed 
that  she  had,  in  fact,  made  the  correction.  All  the  departments  of 
her  government — her  Legislature,  her  courts,  and  her  Executive — had 
at  different  times  examined  and  revised  the  action  of  her  Returning 
Board ;  pronounced  it  false,  fraudulent,  and  void  ;  declared  that  the 
Tilden  electors  were  duly  appointed,  and  left  the  Hayes  candidates 
without  a  shred  of  authority  to  vote  for  the  State.  There  stood  the 
State  herself,  upright  before  the  august  Commission,  with  all  the  evi 
dence  in  her  hand,  protesting  against  the  fraud  and  demanding  that 
no  vote  should  be  received  except  the  vote  of  her  own  electors  duly 
appointed  by  her  people.  But  the  Commission  answered  that  under 
the  circumstances  of  this  case  she  had  no  right  to  defend  herself 
against  the  fraud  of  a  Returning  Board  any  more  than  she  had  to  be 
defended  by  the  Federal  authorities.  Whatever  she  might  do,  or  de 
cide,  or  resolve  upon,  the  Great  Fraud  was  her  master  and  she  must 
submit.  So  it  appeared,  after  all  the  fine  speeches  about  State  rights, 
that  Florida  had  but  one  right — the  right  to  be  cheated  out  of  her  vote 
by  the  same  knaves  who  had  already  robbed  her  of  her  property.  That 
right  was  sacred  and  intangible,  and  the  Commission  promptly  put  her 
in  full  possession  of  it. 

In  the  case  of  Florida  there  was  one  piece  of  evidence  offered  which 
not  only  commended  itself  strongly  to  the  consideration  of  just  men, 
but,  being  supported  by  certain  artificial  rules  of  pleading  and  practice, 
it  was  expected  to  find  acceptance  in  the  narrowest  mind  on  the 
bench.  This  was  the  record  of  a  judicial  proceeding  commenced  in  a 
Florida  court  by  writ  of  quo  warranto  at  the  suit  of  the  State  upon 
the  relation  of  the  Tilden  electors  against  the  Hayes  electors.  The 
parties  came  into  court  and  pleaded,  and  the  issue  made  between  them 
was  whether  one  set  or  the  other  (the  relators  or  the  defendants)  were 
duly  appointed  electors  of  President  and  Vice-President  by  and  for 
the  State  of  Florida.  Evidence  was  taken,  the  cause  was  debated  by 
counsel  on  both  sides,  and  after  consideration  it  was  adjudged  by  the 
court,  against  the  defendants  and  in  favor  of  the  State,  that  the  relat 
ors  were  duly  appointed  and  the  defendants  not.  This  fact,  thus 


336  POLITICAL  ESSAYS  AND  LETTERS. 

determined  by  the  court,  was  precisely  the  same  fact  afterward  con 
troverted  by  the  same  parties  before  the  Commission.  When  sub 
mitted  to  the  latter  tribunal,  it  was  res  judicata ;  not  only  true, 
but  fixed  and  settled  beyond  the  reach  of  contradiction.  The  judg 
ment  was  not  impeached  for  fraud  or  reversed  for  error.  It  was  in 
full  force  and  virtue.  It  was  not  denied  that  the  court  which  made 
the  adjudication  had  entire  arid  complete  jurisdiction  both  of  the 
subject-matter  and  of  the  parties.  By  all  reason  and  all  authority 
the  Commission  was  bound  to  respect  this  judgment  as  conclusive 
evidence.  But  to  have  done  this  would  have  made  Tilden  President 
and  defeated  the  purpose  of  all  the  frauds  in  Louisiana  and  Florida 
both.  They  did  not  do  it ;  they  allowed  the  judgment  to  have  no 
effect  at  all.  They  but  looked  to  see  what  it  was  and  immediately 
swept  it  out  of  sight.  They  put  it  far  from  them,  and  then  proceeded 
to  pronounce  a  different  judgment,  which  suited  the  Hayes  men 
better.  How  could  they  break  all  the  bars  of  legal  authority  which 
fenced  them  about  ?  What  starting-hole  did  they  find  to  escape  from 
the  corner  into  which  they  were  driven  and  penned  up  by  the  law  of 
the  land  ?  We  shall  see. 

They  said  the  judgment  of  the  court  was  too  late;  it  was  pro 
nounced  after  the  Hayes  electors  had  met  and  made  out  their  votes, 
and  sent  them  to  the  President  of  the  Senate.  Here  were  two  sets  of 
electors,  each  claiming  the  exclusive  right  to  vote  for  the  State,  and 
both  of  them  actually  sent  up  their  ballots.  One  of  them  was  duly 
appointed,  and  had  the  authority  claimed ;  the  other  set  was  neces 
sarily  composed  of  mere  pretenders,  who  were  not  duly  appointed,  and, 
having  no  authority,  their  vote  was  a  mere  nullity.  Which  party  was 
right,  and  which  wrong  ?  The  conflict  must  be  settled  somehow. 
Where  was  the  jurisdiction  to  determine  it  ?  Undoubtedly,  and  by 
universal  admission,  the  power  was  in  the  courts  of  the  State  from 
which  both  claimants  professed  to  derive  their  authority.  The  proper 
State  court  did  determine  it ;  but  the  Commissioners  said  that,  how 
ever  competent  the  jurisdiction  of  the  court,  it  was  too  late  in  making 
its  decision,  and  then  they  proceeded,  in  the  exercise  of  a  jurisdiction 
exactly  similar,  to  decide  the  same  questions  of  fact  and  law  the  other 
way.  Now  comes  the  query,  if  the  court's  decision  was  worthless 
because  it  was  late,  what  was  the  value  of  the  Commission's  judgment 
which  was  LATER  ?  The  Eight  did  actually,  not  in  words,  but  in  sub 
stance  and  effect,  give  vent  to  the  bald  absurdity  that  it  was  too  late  in 
January  to  decide  the  dispute  in  favor  of  Tilden,  but  not  too  late  in 
February  to  decide  it  in  favor  of  Hayes. 

Another  thing  they  said  :  This  judgment,  though  it  proved  the 
fact  that  the  Hayes  claimants  were  not  duly  appointed,  and  had  no 
title  to  the  office  of  electors,  did  not  invalidate  the  acts  previously 
done  by  them  while  they  were  de  facto  in  the  exercise  of  the  powers 


POLITICAL  ESSAYS  AND  LETTERS.  337 

they  usurped.  There  is  a  just  and  necessary  rule  of  law  which  de 
clares  that  the  validity  of  acts  regularly  done  by  an  officer  shall  not 
depend  on  the  title  by  which  he  holds  the  office.  You  may  remove  a 
sheriff  by  a  quo  warranto  without  destroying  the  titles  of  all  who  pur 
chased  land  at  his  sales,  or  a  judge  without  vacating  his  decrees,  or  a 
treasurer  without  saying  that  his  payment  of  a  public  debt  is  not  sat 
isfaction  ;  but  where  a  person  assumes  a  special  authority  to  do  a  par 
ticular  thing  the  validity  of  the  act  does  depend  on  the  authority  to 
do  it.  This  latter  rule  applies  here.  These  electors  claimed  a  right 
to  vote  for  the  State  under  a  special  appointment  given  them  to  do 
that  one  act.  When  a  competent  court  adjudicated  as  matter  of  fact 
that  the  Hayes  electors  had  no  appointment,  it  was  a  logical  and  legal 
necessity  which  declared  the  unauthorized  votes  to  be  null  and  void. 
If  this  were  not  the  principle,  then  any  impostor,  or  any  number  of 
impostors,  might  send  up  their  ballots,  and  one  would  be  as  good  as 
another. 

But,  again,  let  it  not  be  forgotten  that  the  Tilden  electors  had  also 
voted  at  the  same  time  in  the  same  way.  Why  did  not  this  fact  make 
as  much  weight  for  them  as  for  the  others  ?  It  will  excite  the  wonder 
of  the  world  to  learn  that,  in  the  opinion  of  the  Eight,  a  person  who 
voted  under  an  appointment  given  him  by  the  people  according  to  law 
could  not  be  even  a  de.  facto  elector  ;  but  another  person,  who  had  noth 
ing  to  claim  by  except  the  false,  fraudulent,  and  void  declaration  of 
a  Returning  Board,  was  good  de  facto,  if  he  was  good  for  nothing  else. 
This  doctrine  of  de  facto  sanctification,  saving  acts  which  have  no 
other  " relish  of  salvation  in  them,"  and  making  the  votes  of  unau 
thorized  men  as  good  as  if  they  came  from  persons  duly  appointed, 
cuts  a  great  figure  throughout  the  whole  case.  It  is  not  applicable, 
but  the  Eight  apply  it  everywhere,  and,  strange  to  say,  they  never  use  it 
when  it  does  not  make  in  favor  of  some  fraud  or  other.  One  who  votes 
according  to  the  public  will  of  the  State,  legally  expressed  through  the 
ballot-boxes,  is  de  facto  nothing  ;  but  if  he  was  defeated  or  ineligible, 
he  is  de  facto  all  he  wants  to  be.  One  of  the  Hayes  electors  in  Lou 
isiana  was  a  Federal  officer  ;  his  election  was  forbidden  by  the  Con 
stitution  of  the  United  States,  and  he  was  not  elected  but  beaten  at 
the  polls  ;  de  facto  strained  its  utmost  power  on  him,  and  pulled  him 
through,  in  spite  of  Constitution  and  people  both.  But  his  Demo 
cratic  competitor,  who  had  acted  as  an  elector  in  the  same  way  and  to 
the  same  extent,  was  legally  chosen  by  an  overwhelming  majority,  and 
constitutionally  eligible  ;  therefore  de  facto  could  do  nothing  for  him. 

In  all  the  discussions  of  the  subject  the  men  disposed  to  favor  the 
conspiracy  professed  a  most  profound  veneration  for  the  "forms  of 
law."  This  was  the  key-note  struck  at  New  Orleans  by  the  visiting 
committee,  and  it  is  heard  in  every  subsequent  argument  of  counsel 
and  commissioner  on  that  side.  It  seemed  to  be  understood  among 

22 


338  POLITICAL  ESSAYS  AND  LETTERS. 

them  that  a  formal  cheat  was  perfectly  safe  from  exposure.  If  the 
sepulchre  was  whited  on  the  outside,  it  made  no  difference  that  it  was 
filled  with  "corruption,  dead  men's  bones,  and  all  uncleanness. "  No 
refuge  of  lies  could  be  swept  away,  no  hiding-place  of  falsehood  could 
ever  be  uncovered,  if  it  was  built  in  the  prescribed  form.  Only  give 
it  the  legal  shape,  and  the  overflowing  scourge  would  be  turned  aside. 
But  legal  form,  however  valuable  as  a  covering  for  fraud,  was,  in  their 
judgment,  no  protection  for  truth  or  justice  or  public  right.  The 
will  of  Louisiana  was  pronounced  at  the  election  with  all  the  solemni 
ties  required  by  the  law  of  the  State  and  of  the  United  States.  The 
appointment  of  the  Tilden  electors  on  the  7th  of  November  was  a  per 
fectly  legal  piece  of  work  ;  there  was  not  a  flaw  in  the  record  of  it  as 
it  came  from  the  hands  of  the  appointing  power.  But  it  was  looked 
on  with  perfect  contempt.  Neither  the  visiting  committee  nor  the 
Hayes  counsel  nor  the  eight  Commissioners  bestowed  on  it  any  of 
their  love.  Their  affections  were  otherwise  engaged;  they  gave  the 
homage  and  devotion  of  their  hearts  to  the  beautiful  regularity,  the 
exquisite  precision,  with  which  the  Returning  Board  compounded  its 
false  certificate. 

Another  paradox  of  the  Eight  is  curious  enough  to  be  noted.  They 
declared  repeatedly  that  they  had  no  power  to  try  a  contested  election 
case,  and  for  that  reason  they  would  not  look  at  the  evidence  which 
showed  what  persons  were  duly  appointed  electors  by  the  people.  Now 
mark  !  The  case  was  this  :  Each  of  those  votes  came  accompanied  by 
what  was  asserted  to  be  proof  that  it  was  cast  by  electors  duly  ap 
pointed.  The  conflict  was  to  be  determined  by  the  verifying  power 
which  Congress  unquestionably  has,  and  which  the  Commissioners 
expressly  assumed  when  they  swore  that  they  would  decide  who  were 
duly  appointed.  To  decide  it  one  way  or  the  other  required  precisely 
the  same  jurisdiction,  and  called  into  exercise  exactly  the  same  facul 
ties.  Yet  they  held  that,  if  they  decided  according  to  the  truth  in 
favor  of  the  electors  actually  appointed,  they  would  be  trying  a  con 
tested  election  ;  but  if  they  decided  in  favor  of  the  pretenders,  who 
had  nothing  but  a  fraudulent  certificate,  they  would  not  be  trying  a 
contested  election  ;  in  other  words,  their  jurisdiction  was  full  and 
ample  to  decide  it  falsely,  but  wholly  unequal  to  the  duty  of  deciding 
it  truly. 

Perhaps  nothing  shows  more  plainly  the  animus  of  the  eight  com 
missioners  than  the  determination  they  made  upon  the  case  of  Brew- 
ster,  ineligible  elector  in  Louisiana.  Keep  in  mind  that  their  defined 
duty  was  to  decide  who  were  duly  appointed,  and  what  votes  were 
provided  for  by  the  Constitution,  and  think  how  they  performed  it  in 
this  part  of  the  case.  Brewster  was  not  only  defeated  at  the  polls  like 
the  rest ;  he  was  besides  a  Federal  office-holder,  and  the  Constitution 
expressly  declares  that  no  such  person  shall  be  appointed  an  elector. 


POLITICAL  ESSA  YS  AND  LETTERS.  339 

But  for  the  purpose  of  electing  Mr.  Hayes,  his  vote  was  worth  as  much 
as  all  the  others.  To  get  that  vote  for  their  candidate,  they  were  re 
quired  to  go  further  than  they  went  for  any  of  the  rest,  and  so  they 
held  :  1.  That  the  certificate  of  the  Eeturning  Board  was  proprio 
vigore  an  appointment.  2.  That  it  was  a  due  appointment,  though 
corrupt  and  dishonest.  3.  That 'this  was  a  vote  provided  for  by  the 
Constitution,  though  the  Constitution  in  plain  words  provided  against 
it. 

After  all,  .there  was  but  one  question  before  the  Commission.  Had 
the  American  people  a  right  to  elect  their  own  Chief  Magistrate  ? 
They  had  the  right.  Their  ancestors  struggled  for  it  long,  fought  for 
it  often,  and  won  it  fairly.  Being  imbedded  in  their  Constitution,  it 
can  not  be  destroyed  except  by  a  force  strong  enough  to  overthrow 
the  organic  structure  of  the  government  itself.  Legislative  enact 
ments  or  judicial  decisions  are  powerless  either  to  strengthen  or  im 
pair  it.  The  legerdemain  of  law-craft,  the  catches  of  special  pleading, 
the  snapperadoes  of  practice,  do  not  help  us  to  decide  a  matter  like 
this.  A  great  nation  must  not  be  impaled  upon  a  pin's  point.  Prece 
dents  which  might  bind  a  Court  of  Quarter  Sessions  determining 
the  settlement  of  a  pauper  can  not  tie  up  the  hands  of  the  Supreme 
Legislature  defending  a  fundamental  right  of  the  whole  people.  When 
Grenville,  in  1766,  cited  the  authority  of  divers  cases  to  show  that 
America  might  be  taxed  without  representation,  Pitt  answered  :  "I 
come  not  here  armed  at  all  points,  with  the  statute-book  doubled 
down  in  dog's  ears  to  defend  the  cause  of  liberty.  I  can  acknowledge 
no  veneration  for  any  procedure,  law,  or  ordinance,  that  is  repugnant 
to  reason  and  the  first  principles  of  our  Constitution.  I  rejoice  that 
America  has  resisted."  So  spoke  the  defiant  friend  of  our  race  in 
the  presence  of  a  hostile  Parliament  ten  years  before  the  Declaration 
of  Independence.  And  now,  after  this  long  interval  of  time,  we  be 
hold  our  greatest  right — the  right  on  which  all  other  rights  depend — 
successfully  assailed  in  our  own  Congress  with  the  same  small  weapons 
that  Grenville  used.  If  brute  force  had  crushed  it  out,  we  might 
have  borne  the  calamity  with  fortitude ;  but  to  see  it  circumvented 
by  knavery  and  pettifogged  to  death,  is  too  much  to  be  endured  with 
any  show  of  patience. 

If  the  majority  of  that  Commission  could  but  have  realized  their 
responsibility  to  God  and  man,  if  they  could  only  have  understood 
that,  in  a  free  country,  liberty  and  law  are  inseparable,  they  would 
have  been  enrolled  among  our  greatest  benefactors,  for  they  would 
have  added  strength  and  grandeur  to  our  institutions.  But  they  could 
not  come  up  to  the  height  of  the  great  subject.  Party  passion  so 
benumbed  their  faculties  that  a  fundamental  right  seemed  nothing  to 
them  when  it  came  in  conflict  with  some  argument  supported  by  arti 
ficial  reasoning  and  drawn  from  the  supposed  analogies  of  technical 


340  POLITICAL  ESSAYS  AND  LETTERS. 

procedure.     The  Constitution  was  in  their  judgment  outweighed  by  a 
void  statute  and  the  action  of  a  corrupt  Returning  Board. 

Let  these  things  be  remembered  by  our  children's  children,  and 
if  the  friends  of  free  government  shall  ever  again  have  such  a  contest, 
let  them  take  care  how  they  leave  the  decision  of  it  to  a  tribunal  like 
that  which  betrayed  the  nation  by  enthroning  the  Great  Fraud  of 
1876. 


LETTER  TO    MR.   STOUGHTON. 

To  Hon.  E.  W.  StougUon  : 

IF  I  do  not  reply  to  your  article  in  the  last  number  of  the  "North 
American  Review,"  you  will  remain  under  the  delusion  that  your 
argument  is  irresistible.  I  will  try  to  correct  that  mistake  by  show 
ing  that,  if  there  be  a  defense  for  the  Great  Fraud,  you  decidedly  are 
not  the  person  to  make  it.  Doing  this  mainly  for  your  own  edifica 
tion,  I  address  you  directly. 

I  separate  your  personal  invective  from  your  discussion  of  the 
case,  though  they  are  so  mixed  as  to  make  separation  difficult,  and  I 
will  consider  your  objections  to  my  view  of  the  subject  as  if  they  had 
been  expressed  in  becoming  and  decent  language. 

You  think,  as  your  political  friends  in  general  think,  that  after 
the  decision  of  the  Electoral  Commission  against  us,  we  ought  to  sub 
mit  in  silence  and  not  vex  the  victorious  party  with  an  appeal  to  the 
tribunal  of  public  opinion.  We  have  submitted.  The  proper  repre 
sentatives  of  both  parties  agreed  to  leave  the  dispute  to  a  body  which 
they  constituted  for  the  purpose  of  settling  it.  We  could  not  refuse 
to  abide  by  the  award  without  being  guilty  of  bad  faith.  We  do  not 
now  assert  the  injustice  of  it  with  any  view  to  reverse  or  modify  it. 
You  need  not  fear  the  stability  of  that  award,  however  iniquitous 
you  may  know  it  to  be.  You  can  enjoy  its  fruits  in  perfect  security, 
and  we  the  people  will  on  our  part  "perform  the  vows  which  we 
have  vowed  before  the  Lord,"  however  much  it  may  be  "to  our  own 
hurt." 

But  to  acquiesce  without  a  protest — to  confess  tacitly  that  the 
wrong  is  right,  and  the  evil  a  good — that  is  out  of  the  question.  In 
discussing  the  whole  subject  with  great  plainness  of  speech,  we  not 
only  obey  an  impulse,  but  perform  a  duty.  For  this  I  will  give  some 
reasons,  and  take  the  chances  of  making  you  comprehend  them. 

In  the  first  place,  it  concerns  the  reputations  of  nearly  all  the  pub 
lic  men  of  the  present  day.  You  and  I  are  too  obscure  to  be  noticed 
by  history,  but  the  great  characters  of  our  time  on  both  sides  will  go 
down  to  posterity  clothed  with  honor  or  covered  with  infamy,  accord- 


POLITICAL  ESSAYS  AND  LETTERS.  341 

ing  as  they  have  been  trying  to  further  the  fraud  or  stop  it.  Remem- 
ber  there  was  a  fraud,  and  a  very  gross  one,  committed  by  one  party 
or  the  other.  If  the  State  of  Louisiana  chose  Kellogg  and  the  other 
candidates  on  the  Hayes  ticket  for  presidential  electors,  and  the  Demo 
cratic  politicians,  knowing  this,  did,  nevertheless,  deny  the  truth  and 
fabricated  a  false  return  for  Tilden,  which  they  persisted  to  the  last 
in  trying  to  pass  for  a  true  one,  they  were  a  combination  of  most  re- 
demptionless  rogues ;  and  it  will  be  recorded,  as  an  aggravation  of 
their  crime,  that  when  the  righteous  majority  of  the  Electoral  Com 
mission  crushed  out  their  falsehood  they  turned  about  and,  with  calum 
nious  accusations,  charged  their  own  guilt  upon  their  innocent  oppo 
nents.  The  converse  of  these  propositions  is  also  true.  If  the  Tilden 
electors  were  duly  chosen  by  the  people,  and  the  Republican  leaders 
in  and  out  of  the  State  altered  the  returns,  falsified  the  records,  and 
constituted  a  counterfeit  Electoral  College,  whereby  the  people  of  the 
State  and  the  Union  were  cheated  out  of  the  President  whom  they 
had  legally  elected  by  a  large  majority,  then  it  is  only  anticipating 
history  to  say  that  all  who  aided,  abetted,  and  encouraged  that  offense 
ought  to  be  "classed  among  the  worst  malefactors  of  the  age."  See 
ing  the  great  interest  that  hangs  on  this  question,  is  it  not  fairly 
worth  our  while  to  give  it  a  full  examination  while  the  facts  are  yet 
fresh  in  the  memory  of  men  ? 

Another  consideration  there  is,  which  makes  a  public  appeal  upon 
the  subject  not  on*ly  proper,  but  absolutely  necessary,  if  our  convic 
tions  are  not  founded  in  total  mistake.  The  candidate  to  whom  you 
are  opposed  was,  as  we  understand  the  case,  elected  by  an  overwhelm 
ing  popular  vote,  and  by  a  majority  of  at  least  twenty-three  in  the 
Electoral  Colleges.  But  you  defeated  the  legally  expressed  will  of  the 
people  and  the  States,  by  means  of  false  tokens  and  divers  covinous 
practices,  contrary  to  the  law  and  against  the  moral  sense  of  all  honest 
men.  The  decision  of  the  Electoral  Commission,  by  making  the 
fraud  perfectly  successful,  invites  a  repetition  of  it,  and  you  undoubt 
edly  will  repeat  it,  unless  you  are  in  some  way  deterred.  Now,  the 
nation  will  not  submit  to  another  such  outrage.  We  promote  your 
true  interests  as  well  as  ours  if  we  prevent  you  from  endangering  the 
peace  of  the  country  by  trying  this  kind  of  foul  play  over  again.  To 
that  end  the  best,  as  well  as  the  kindest,  means  I  know  of,  is  a  com 
plete  exposure  of  the  fraud  itself,  and  a  free  criticism  of  the  Commis 
sion,  which  should  have  rebuked  it,  but  did  not. 

You  deprecate  every  expression  from  any  quarter  which  is  calcu 
lated  to  loosen  the  confidence  of  the  public  in  the  judicial  authorities, 
and  think,  therefore,  that  the  Electoral  Commission  should  be  very 
tenderly  dealt  with.  Mr.  Jefferson  said  that  jealousy  of  rulers,  not 
confidence,  was  the  virtue  of  all  true  citizens  of  a  republic.  Without 
stopping  to  consider  whether  this  applies  to  judges,  as  well  as  other 


34:2  POLITICAL  ESSAYS  AND  LETTERS. 

officers,  I  answer  you  by  saying  that  the  Electoral  Commission  was 
not  a  judicial  tribunal,  and  did  not  behave  like  one.  It  was  a  political 
body  organized  for  a  special  occasion,  to  determine  a  particular  ques 
tion,  "  according  to  the  best  of  its  prejudices  "  ;  and  it  performed  the 
function  assigned  to  it  by  disregarding  the  law  of  the  case  and  shut 
ting  its  eyes  on  the  facts.  The  less  confidence  we  have  in  such  tri 
bunals  the  better ;  indeed,  a  reasonable  regard  for  the  safety  of  our 
most  important  rights  requires  that  we  should  have  none  at  all. 

You  are  welcome  to  the  admission  (if  you  think  it  will  do  you  any 
good)  that  I  look  not  only  with  contempt,  but  with  abhorrence,  upon 
all  the  special  tribunals  which  have  disgraced  the  history  of  our  race 
on  both  sides  of  the  Atlantic,  including  the  Star  Chamber,  the  Court 
of  High  Commission,  all  military  and  all  ecclesiastical  commissions, 
and  all  commissions  for  political  purposes.  If  I  could  revive  in  this 
generation  the  stern  hatred  which  our  fathers  felt  for  those  dangerous 
enemies  of  liberty  and  justice,  I  would  be  a  great  public  benefactor, 
and  you  would  never  get  another  commission  of  any  kind  to  uphold 
fraud,  to  sanctify  persecution,  or  to  oppress  the  innocent. 

You  take  violent  exception  to  my  use  of  the  word  "conspiracy," 
as  applied  to  those  unlawful  proceedings  which  resulted  in  defeating 
Mr.  Tilden's  large  majority.  Of  course,  you  prefer  your  own  euphe 
mistic  phrase,  and  call  it  taking  "a  political  advantage."  But  I  can 
not  see  wherein  my  term  is  wrong.  Your  objection  is  like  that  of 
ancient  Pistol  to  the  word  steal,  for  which  he  wished  to  substitute 
convey. 

To  say  conspiracy,  fraud,  or  anything  else  which  implies  that  your 
friends  in  Louisiana  and  their  allies  were  guilty  of  crime,  is  in  your 
opinion  coarse  and  brutal.  Your  refined  taste  has  been  deeply  offended 
in  this  way,  not  only  by  me,  but  by  the  whole  Democracy  wherever 
they  have  written  or  spoken  on  the  subject,  either  in  Congress,  before 
the  Commission,  or  elsewhere.  The  impoliteness  of  making  the  ac 
cusation  has  been  uniformly  heightened  by  the  rough  boldness  with 
which  it  was  proved  to  be  true,  and  by  the  "blistering  words"  in 
which  it  was  denounced.  Perhaps  all  the  Democrats  were  wrong  to 
some  extent.  It  may  be  that  we  ought  not  to  have  spoken  out  in 
harsh  terms  of  censure,  or  said  anything  to  disturb  the  serenity  of  the 
knaves  who  did  us  this  terrible  injustice.  But  if  you  are  not  alto 
gether  blind,  you  must  see  that  this  was,  in  our  situation,  simply  im 
possible.  Here  was  a  great  nation  which  had  suffered  by  misgovern- 
ment  more  than  any  other  under  the  sun — her  property  taxed  almost 
to  confiscation— her  industry  crushed  to  the  earth — her  public  domain 
squandered  away — her  best  citizens  starving  by  the  hundred  thousand 
in  the  midst  of  the  plenty  which  their  own  labor  had  produced,  while 
corruption  was  reveling  in  high  places  and  fattening  on  the  general 
distress.  The  people  determined  to  reform  the  administration  of  their 


POLITICAL  ESSAYS  AND  LETTERS.  343 

public  affairs,  and  restore  their  own  prosperity,  by  choosing  rulers 
whom  they  could  trust  for  that  purpose.  They  expressed  their  will 
to  that  effect  legally,  constitutionally,  and  peacefully,  and  they  were 
defeated  by  an  impudent  swindle.  Is  it  any  wonder  that  the  great 
heart  of  the  Democracy  swelled  with  indignation  ?  Even  if  their 
feelings  found  vent  in  language  too  passionate,  you  ought  to  remem 
ber  with  Burke,  that  "something  must  be  pardoned  to  the  spirit  of 
liberty." 

I  concede,  however,  that  no  feeling  of  resentment  will  excuse  us 
for  charging  a  conspiracy  where  none  existed,  or  fraud  where  none  was 
committed.  Even  if  we  were  wronged,  that  does  not  give  us  the  privi 
lege  of  applying  terms  which  do  not  express  the  real  nature  of  the  in 
jury.  We  can  justify  our  words  only  by  showing  that  we  use  them 
truly,  in  a  sense  authorized  by  the  law  and  the  common  speech  of  the 
country.  Otherwise  our  language  is,  like  some  of  yours,  mere  vitu 
peration,  disgraceful  only  to  those  who  utter  it.  Accepting,  therefore, 
the  onus  probandi,  let  me  bring  your  attention  to  certain  facts  well 
and  publicly  known. 

It  is  proved,  if  human  testimony  can  prove  anything,  that  the  peo 
ple  of  Louisiana  did,  on  the  seventh  of  November  last  past,  duly,  and 
by  regular  ballots,  make  an  appointment  of  presidential  electors  known 
to  be  in  favor  of  Tilden  and  Hendricks,  and  authorized  them  to  cast 
the  vote  of  the  State.  It  is  just  as  clear  that  the  appointment  made 
by  the  people  was  set  at  naught  by  a  gross  falsification  of  the  records 
and  returns  of  the  election.  This  was  effected  by  the  corrupt  agency 
of  certain  local  officers,  combined  with  other  persons  in  and  out  of  the 
State,  who  incited  them  to  it,  abetted  them  in  it,  and  helped  them  to 
clothe  the  cheat  in  what  they  said  were  the  "  forms  of  law."  Is  it  a 
misnomer  to  call  this  a  conspiracy  ?  That  offense  is  defined  as  a  com 
bination  of  several  persons  to  accomplish  an  unlawful  purpose,  by  con 
certed  action.  How  can  you  get  your  friends  outside  of  this  defini 
tion  ?  Persons  acting  in  this  way  are  always  treated  as  conspirators, 
and,  by  the  law  of  every  civilized  country  in  the  world,  they  are  se 
verely  punished.  Take  one  simple  and  actual  case  out  of  thousands 
that  might  be  given.  Divers  dishonest  men  at  St.  Louis  combined  to 
defraud  the  United  States  of  their  revenue  from  distilled  spirits,  and 
they  did  it  by  a  preconcerted  series  of  false  and  deceptive  returns 
which  certain  public  officers,  confederated  with  them,  passed  off  as 
true.  This  was  held,  and  justly  held,  to  be  a  conspiracy,  and  some 
of  the  parties  to  it  were  sent  to  the  penitentiary. 

Perhaps  you  do  not  see  the  parallel,  but  the  analogue  is  perfect, 
except  in  this  :  that  in  the  case  which  you  defend,  the  object  of  the 
combination  was  to  cheat  the  people  out  of  their  right  of  self-govern 
ment,  while  the  purpose  of  the  St.  Louis  conspiracy  was  to  rob  them 
of  their  money.  If  this  makes  any  difference,  it  is  greatly  against  you, 


344:  POLITICAL  ESSAYS  AND  LETTERS. 

for  liberty  is  more  precious  than  gold.  In  the  judgment  of  the  vir 
tuous  and  wise  men  who  won  the  independence  and  built  up  the  insti 
tutions  of  this  country,  the  privilege  of  choosing  our  own  rulers  was 
infinitely  the  richest  part  of  the  great  inheritance  they  left  us.  With 
a  full  price  in  blood  and  treasure  they  bought  this  freedom  for  their 
children,  and  I  do  not  know  one  tolerably  decent  American  who  would 
sell  even  his  single  right  on  any  terms  whatever.  At  the  critical  pe 
riod  in  the  history  of  Louisiana  which  occurred  last  year  it  was  espec 
ially  valuable  to  her  people,  for  it  furnished  them  the  only  legal, 
peaceable,  and  safe  measure  of  relief  from  the  exactions  of  a  most  cor 
rupt  and  oppressive  government.  The  successful  scheme  to  cheat 
those  people  out  of  their  votes  for  State  officers  and  presidential  elect 
ors  is,  therefore,  a  crime  of  the  greatest  magnitude,  and  one  which 
requires  a  cheek  of  solid  brass  to  defend  it  without  blushing.  It  is 
far  worse  than  a  conspiracy  to  steal  any  amount  of  public  money. 
Eunning  crooked  whisky  for  a  lifetime  would  be  an  act  of  white-robed 
innocence  in  comparison. 

The  ultimate  object  of  this  crime  gives  it  a  general  aspect  revolting 
in  the  last  degree ;  but  its  features,  when  seen  in  detail,  are  hideous 
beyond  expression.  Some  returns  were  entirely  suppressed,  and  others 
were  altered ;  votes  actually  cast  were  thrown  out,  and  others  put  in 
and  counted  which  were  known  not  to  have  been  polled.  The  whole 
proceeding  was  full  of  false  pretenses.  Forgery  of  the  most  important 
documents  was  a  part  of  it ;  perjury  and  subornation  of  perjury  at 
tended  it  at  every  step.  Shall  these  things  be  forgotten  or  condoned  ? 
Do  you  expect  the  cheated  people  of  the  nation  to  say,  like  the  eight 
commissioners,  that  this  is  as  good  a  way  as  any  to  elect  a  President  ? 

One  of  your  allegations  is  that  I  intended  "  to  convey  the  false  im 
pression  that  the  formation  of  the  Commission  was  the  result  of  a 
Republican  conspiracy  to  fraudulently  elect  a  President  and  Vice- 
President  " ;  and  Judge  Bradley,  taking  your  word  for  it,  has  made 
himself  interesting  by  a  public  complaint  of  the  injury  to  himself.  I 
did  not  say  this  or  anything  like  it.  On  the  contrary,  I  referred  to 
the  Commission  as  being  proposed  in  certain  difficult  circumstances  to 
avoid  the  dangers  which  might  spring  from  a  continued  and  final  dis 
agreement  between  the  two  Houses,  and  as  being  accepted  by  the 
Democrats  in  the  belief  that  justice  would  be  done,  and  an  honest 
decision  rendered  against  the  fraud.  In  all  this  there  is  nothing  about 
a  conspiracy  in  "the  formation  of  the  Commission."  I  do  not  know 
that  you  misrepresented  this  point  willfully.  It  is  one  of  your  char 
acteristic  inaccuracies,  like  that  which  charges  Dante  with  the  inde 
cencies  of  the  "Decameron." 

No  ;  the  conspiracy  was  not  in  the  formation  of  the  Commission, 
but  in  the  frauds  which  fabricated  and  returned  those  bogus  votes. 
The  Commission  refused  to  verify  the  vote  and  ascertain  whether  the 


POLITICAL  ESSA  YS  AND  LETTERS.  345 

electors  that  sent  them  up  were  duly  appointed  or  not,  and  in  this  it 
bitterly  disappointed  the  friends  of  truth,  and  grossly  violated  the 
whole  spirit  as  well  as  the  letter  of  the  law  which  gave  it  being. 
Whether  this  was  mere  error  or  something  worse,  is  not  for  me  or 
you  to  determine  ;  but  the  general  judgment  will,  no  doubt,  adopt 
the  charitable  view  which  I  have  given,  and  say  that  the  faculties  of 
the  majority  were  too  much  benumbed  by  party  passion  to  see  the 
facts  or  understand  the  law. 

You  claim  that  the  certificate  of  the  Eeturning  Board  gave  you 
a  "political  advantage."  In  this  you  are  certainly  right.  A  party 
sued  for  an  honest  debt  has  a  great  advantage  over  his  creditor  if  he 
can  produce  a  fraudulent  or  forged  receipt  upon  the  trial.  The  ad 
vantage  becomes  decisive  if  the  tribunal  trying  the  cause  is  willing  to 
accept  the  false  paper,  give  it  the  effect  of  a  true  one,  and  permit  the 
plaintiff  to  be  cheated  out  of  his  debt.  But  would  it  be  right,  legally 
or  morally,  for  the  debtor  to  take  such  an  advantage  ? 

Your  technical  argument  in  favor  of  the  fraud  deserves  notice, 
because  it  is  almost  your  only  attempt  at  reasoning,  and  because  your 
conclusion  would  be  fair  if  your  premises  were  sound. 

You  declare,  in  broad  and  unqualified  terms,  that  the  American 
people  have  "no  right  to  elect  their  own  Chief  Magistrate  " — that 
no  such  right  is  imbedded  in  the  Constitution  or  elsewhere — that,  on 
the  contrary,  "  the  framers  of  the  Constitution  were  careful  to  ex 
clude  from  the  people  the  right  to  elect  their  own  Chief  Magistrate." 
I  admit  that  this,  if  true,  ends  the  controversy  in  your  favor  ;  for  it 
can  not  have  been  legally  wrong  to  defeat  the  attempt  which  the  peo 
ple  made  to  exercise  a  right  from  which  they  were  carefully  excluded 
by  the  Constitution.  But  this  opinion  of  yours  is  a  total  misconcep 
tion,  and  will  not  be  adopted  by  any  human  being  who  has  the  faint 
est  idea  of  our  institutions. 

You  put  your  proposition  with  even  more  directness  and  speak 
with  unwonted  precision  when  you  say,  as  you  do  on  the  same  page, 
that  the  people  of  Louisiana  and  Florida  have  not  the  power  to  ap 
point  electors  of  President  and  Vice-President.  This  goes  to  the 
root  of  the  matter.  It  proves  logically  enough  that  the  election  at 
which  the  Tilden  candidates  were  fixed  upon,  chosen,  appointed,  and 
named  as  electors,  was  a  mere  abortion — a  vain  effort  to  perform  a 
function  ultra  vires  and  merely  void.  The  Keturning  Board  and  the 
Electoral  Commission  were  justified  in  treating  it  with  contempt*  Of 
such  an  election,  it  was  no  harm  to  falsify  the  records  ;  for  in  their 
best  estate  they  had  no  value  or  validity.  To  forge  them  was  no 
crime,  for  it  prejudiced  no  right. 

But  is  it  true  that  the  people  of  Louisiana  and  Florida  have  no 
power  to  appoint  electors  ?  You  deny  the  power  of  the  people  to 
appoint,  because  that  power  "  is  by  the  supreme  law  of  the  land  (mean- 


346  POLITICAL  ESSAYS  AND  LETTERS. 

ing  the  Federal  Constitution)  vested  in  the  States,  to  be  exercised  in 
such  manner  as  the  Legislatures  thereof  may  direct."  Now,  the  Legis 
latures  of  the  two  States  have  directed  that  the  power  shall  be  exer 
cised  by  the  people,  and  this  makes  their  right  as  clear  as  if  the  leg 
islative  enactment  had  been  textually  inserted  in  the  Constitution  of 
the  United  States.  No  argument  is  necessary  to  make  this  intelligi 
ble  to  a  man  of  ordinary  sense.  There  is  the  Constitution  and  there 
are  the  laws  of  the  States  ;  "he  that  runs  may  read,"  though,  under 
the  circumstances,  I  suppose  I  must  not  allow  myself  to  say  that  "  a 
fool  can  not  err  therein." 

It  is  hardly  possible  to  imagine  anything  more  preposterous  than 
your  notion  that  these  laws,  which  give  the  power  of  appointment  so 
distinctly  and  so  exclusively  to  the  people,  do  not  give  it  to  them  be 
cause  a  Returning  Board  is  authorized  to  collate  the  votes,  add  them 
together,  and  ascertain  what  choice  the  people  have  made  ;  that  the 
power  to  inspect  the  record  of  the  election  and  certify  the  result  is 
the  power  to  elect ;  that  the  right  of  the  people  to  choose  their  State 
officers  and  presidential  electors  is  only  the  power  to  send  up  names 
to  the  returning  officer,  who  may  choose  them  or  reject  them  at  his 
pleasure  ;  that  when  the  people  have  made  one  appointment,  and  the 
Returning  Board  another,  the  latter  is  the  due  appointment,  and  the 
former  no  appointment  at  all. 

I  will  not  trouble  you  with  judicial  decisions  on  this  point,  or  with 
arguments  derived  from  the  established  canons  of  construction,  for 
they  would  make  no  impression  on  your  mind.  But  I  think  I  can 
stagger  you  by  citing  the  authority  of  those  mighty  jurists  and  states 
men  who  until  recently  ran  the  government  of  Louisiana  so  much  to 
your  admiration.  All  of  them,  without  exception,  and  "without 
distinction  of  race,  color,  or  former  condition  of  servitude,"  conceded 
the  exclusive  right  and  the  unqualified  power  of  the  people  to  appoint 
electors  of  President  and  Vice- President  for  their  State.  This  con 
cession  was  not  only  made  in  words,  it  was  avowed  in  every  act  they 
performed,  from  the  beginning  to  the  end  of  their  domination. 
When  Kellogg  and  his  associates  wanted  the  appointment  of  electors, 
they  asked  the  people  for  it,  and  they  acknowledged  in  a  thousand 
forms  that  the  people  alone  could  give  it.  The  returning  officers 
themselves  never  denied  the  power  of  the  people  to  choose  and  ap 
point  whom  they  pleased  for  electors,  as  well  as  for  Governor,  Lieu- 
tenant-Governor,  and  other  State  officers.  Their  certificates,  whether 
false  or  true,  did  not  pretend  to  be  proprio  vigore  an  appointment. 
Every  one  of  these  papers  purported  on  its  face  to  be  a  mere  declara 
tion  of  the  appointment  previously  made  by  the  people.  No  candi 
date  who  obtained  one  of  them  ever  undertook  to  use  it  except  as  evi 
dence  of  a  pre-existing  right  derived  from  a  popular  vote  in  his  favor. 
The  monstrous  doctrine  that  the  Returning  Board  could  create  title 


POLITICAL  ESSA  YS  AND  LETTERS.  347 

to  an  elective  office  was  never  even  broached,  unless  to  be  universally 
condemned  as  untenable.  It  is  a  pity  that  in  your  long,  frequent, 
and  affectionate  intercourse  with  the  negroes  and  carpet-baggers  at 
New  Orleans  you  did  not  pick  up  a  little  knowledge  of  constitutional 
law. 

Failing  to  find  any  justification  in  the  law  for  those  who  did  this 
deed,  you  must  leave  them  without  an  excuse,  or  find  one  in  the  facts 
of  the  case.  Your  demurrer  is  a  preposterous  sham,  and  you  must 
answer  over,  Was  the  true  vote  of  Louisiana  counted  or  not  ? 

The  great  fundamental  fact  which  underlies  all  others  in  regard  to 
Louisiana  is,  that  the  State,  by  her  qualified  voters,  chose  and  ap 
pointed  the  Tilden  electors  in  due  and  legal  form.  This  is  proved 
by  evidence  clear  and  decisive  enough  to  strike  all  contradiction 
dumb. 

In  less  than  two  days  after  the  election,  it  was  known  all  over  the 
country  that  in  Louisiana  there  had  been  a  full  poll  and  a  heavy  ma 
jority  for  Tilden.  Very  soon  afterward  the  official  count,  made  and 
recorded  in  the  several  parishes  by  Republican  officers  of  the  election, 
were  brought  together,  and  the  exact  vote  of  each  candidate  was  as 
certained.  The  figures  could  not  be  made  to  lie,  and  all  parties 
agreed  that  the  majority  for  the  Tilden  electors  averaged  nearly  eight 
thousand.  Now,  remember,  this  was  a  public  act,  not  done  in  a  cor 
ner,  but  transacted  in  the  face  of  the  world  ;  and  the  uncontradicted 
report  of  it  carried  perfect  conviction  along  with  it.  Upon  evidence 
of  this  kind  the  most  important  fact  in  the  history  of  the  universe 
was  accepted  as  true  in  all  parts  of  the  earth  immediately  after  it  hap 
pened,  and  for  more  than  eighteen  centuries  the  most  powerful  minds 
in  Christendom  have  staked  upon  it  their  highest  interests  in  this 
world,  and  their  salvation  in  the  next.  But  there  was  other  evidence. 
Committees  of  Congress  were  sent  down,  charged  with  the  special 
duty  of  inquiring  into  the  matter  on  the  ground,  and  they  reported 
the  true  result  of  the  election  to  be  as  previously  stated,  that  is  to 
say,  7,659  majority  for  Tilden.  Even  that  is  not  all.  The  original 
documents  and  records  showing  what  the  vote  was,  as  actually  counted 
by  Republican  Commissioners  of  Election,  authenticated  by  their 
sworn  certificates,  and  verified  by  the  oaths  of  many  credible  persons,, 
were  produced  before  Congress  and  before  the  Electoral  Commission. 
These  were  conclusive  proofs  ;  they  were  submitted  to  your  inspection, 
and,  if  you  do  not  know  from  them  that  a  large  majority  of  the  peo 
ple  at  that  election  voted  for  Tilden  electors  and  the  Democratic  State 
officers,  you  are  wholly  unfit  for  your  business.  But  you  do  know  it, 
and  can  not  deny  it  without  totally  destroying  your  character  for 
common  veracity.  Forced  by  the  irresistible  strength  of  the  proofs, 
you  admit  or  (to  use  your  own  words)  assume  that  the  majority  for 
the  Tilden  electors  was  7,659.  So,  therefore,  that  is  settled. 


34:8  POLITICAL  ESSAYS  AND  LETTERS. 

There  is  another  point  of  fact  that  is  also  established.  The  major 
ity  for  the  Tilden  electors  was  made  up  by  the  votes  of  legally  qualified 
citizens.  I  do  not  say  this  merely  because  the  reception  of  the  votes 
by  the  proper  election  officers  was  per  se  an  adjudication  in  favor  of 
the  voters'  right,  but  for  the  further  reason  that  the  election  at  all  the 
polling-places  was  in  the  hands  and  under  the  complete  control  of  the 
opposing  party,  who  would  certainly  not  permit  any  Democratic  vote 
to  go  in  if  they  could  legally  keep  it  out.  Besides,  the  House  Com 
mittee,  when  they  went  to  Louisiana  with  power  to  send  for  persons 
and  papers,  could  not  find  anybody — not  a  carpet-bagger  or  a  custom 
house  officer — hardy  enough  to  assert  that  the  Democrats  had  polled 
illegal  votes.  You  have  not  denied,  and  I  suppose  will  not,  that  the 
majority  of  7,659,  which  you  admit  was  cast  for  the  Tilden  electors, 
was  cast  by  properly  qualified  citizens. 

Another  thing  :  the  election  was  free  and  peaceable.  The  officers 
reported  no  disturbance.  Every  polling-place  was  manned  by  police 
men,  deputy-marshals,  and  soldiers  in  the  interest  of  the  carpet-bag 
gers,  and  all  of  them  testify  that  there  was  no  violence  of  any  kind 
which  called  for  their  interference.  The  same  is  true  with  regard  to 
the  registration.  That  there  could  have  been  no  force  or  intimidation 
at  other  places,  or  times,  which  kept  people  away  from  the  election  is 
proved  by  the  large  number  that  came.  The  vote  was  the  heaviest 
ever  polled  in  the  State ;  and  larger  in  proportion  to  the  whole  popu 
lation,  as  ascertained  by  the  census,  than  in  most  other  States  where 
all  the  exertions  of  both  parties  were  used  to  bring  out  their  last  man. 

The  necessary  result,  briefly  stated,  of  all  the  facts  known  and 
proved  is  this  :  That  the  people  of  Louisiana,  having  the  undoubted 
power  to  choose  their  own  electors,  did  regularly,  duly,  and  legally 
appoint  the  Tilden  candidates  upon  a  full  poll,  at  a  free  election,  and 
by  a  large  majority  ;  and  the  persons  thus  duly  appointed  by  the  peo 
ple  were  exclusively  capable  of  casting  the  presidential  vote  of  the 
State.  It  followed^  as  the  day  follows  the  night,  that  the  count  of 
the  eight  electoral  votes  from  Louisiana  for  Hayes  was  a  false  count. 

But  you  say  that  the  officers  of  the  Eeturning  Board,  by  virtue  of 
certain  judicial  powers  conferred  on  it,  could  disfranchise  the  majority, 
nullify  their  act  of  appointment,  and  virtually  take  the  power  of  choos 
ing  electors  into  their  own  hands.  This  brings  us  to  another  disputed 
question  of  law  :  Is  the  Returning  Board  law  valid  and  binding,  or  a 
mere  nullity  because  of  its  direct  and  palpable  conflict  with  the  Con 
stitution  ?  Let  us  look. 

Of  course,  neither  you  nor  anybody  will  deny  that  disfranchisement 
of  a  free  citizen  is  a  severe  punishment,  reserved  by  the  penal  law  for 
the  most  infamous  crimes.  To  inflict  it  is  an  exercise  of  the  highest 
legal  authority.  The  judicial  power  in  Louisiana  is  exclusively  con 
fined  by  the  State  Constitution  to  certain  enumerated  courts,  and  the 


POLITICAL  ESSAYS  AND  LETTERS.  349 

Returning  Board  is  not  one  of  them.  Therefore,  an  act  of  the  Legis 
lature  which  gives  to  such  a  board  any  judicial  power  to  punish  any 
person  for  any  offense  is  clearly  void.  But,  in  addition  to  this,  it  is 
provided  by  the  fundamental  law  of  all  free  States,  including  Louisi 
ana,  that  even  the  courts  or  magistrates  capable  of  holding  this  power 
shall  never  exercise  it,  except  upon  formal  accusation  and  due  convic 
tion,  after  a  regular  trial  before  an  impartial  jury.  Now,  the  legislative 
act,  which  you  assert  to  be  constitutional,  gives  the  power  to  punish 
by  disfranchisement  to  the  Eeturning  Board,  which  is  not  a  court,  and 
authorizes  it  to  pronounce  sentence  of  disfranchisement  upon  all  the 
citizens  of  a  parish  at  once,  for  an  act  of  violence  not  committed  by 
themselves  or  by  any  of  them,  but  by  somebody  else  whom  they  may 
never  have  seen  or  heard  of.  Even  the  fact  that  violence  was  com 
mitted  by  other  parties  is  to  be  ascertained,  not  by  a  trial,  but  by  an 
inquiry  conducted  in  secret,  behind  the  back  of  the  parties,  on  ex-parte 
statements  of  their  political  enemies.  The  sentence  is  to  be  carried 
remorselessly  out,  though  it  have  the  effect  of  remanding  the  whole 
people  of  the  State  back  to  a  hopeless  bondage,  from  which  they  are 
struggling  to  be  free. 

Such  a  law  you  declare  to  be  constitutional  and  valid  !  There  is 
not  a  half -grown  boy  in  the  country  of  average  understanding  that  does 
not  know  better.  I  can  not  help  but  believe  that  a  little  reflection 
would  have  saved  even  you  from  the  shame  and  folly  of  making  an 
assertion  so  destitute  of  all  sense  and  reason. 

But  you  go  further.  You  not  only  aver  that  the  power  of  the 
Legislature  to  pass  such  a  law  can  not  be  doubted,  but  you  declare  that 
the  Supreme  Court  of  Louisiana  has  adjudged  it  to  be  valid,  that  is  to 
say,  consistent  with  the  Constitution.  This  is  extremely  injurious  to 
that  court,  and,  if  believed,  it  would  destroy  all  confidence  in  the  in 
tegrity  of  its  judgments.  Knowing  something  of  its  members,  I  take 
leave  to  say  that  they  are  utterly  incapable  of  making  a  decision  at 
once  so  false  and  so  absurd.  In  fact,  they  did  not.  No  case  ever  came 
before  them  involving  the  question,  and  no  dictum  ever  fell  from 
either  of  them  which  could  give  the  Returning  Board  or  its  owners 
the  least  hope  of  being  sustained  as  a  constitutional  body. 

This  falsification  of  a  judicial  decision,  to  uphold  the  power  of  the 
Returning  Board  in  fabricating  election  returns,  has  a  curious  history. 
In  November  last,  Mr.  Stanley  Matthews,  in  a  published  letter,  said 
that  the  Supreme  Court  of  the  State  had  decided  the  Returning  Board 
Statute  to  be  constitutional.  He  was  immediately  picked  up  by  nine 
Louisiana  lawyers,  who  told  him  in  a  printed  pamphlet  that  it  was  not 
true,  and  asked  him  with  great  politeness  to  correct  the  error.  He 
was  silent,  but  the  visiting  committee  reasserted  in  its  report  substan 
tially  the  same  thing.  Again  it  was  met  with  loud  and  emphatic  con 
tradiction.  Nevertheless,  Mr.  Sherman  in  the  Senate  afterward  reaf- 


350  POLITICAL  ESSAYS  AND  LETTERS. 

firmed  it,  and  had  the  temerity  to  hold  up  a  book  of  Louisiana  reports 
in  which  he  said  the  decision  would  be  found.  Those  who,  for  want 
of  time  or  interest  in  the  subject,  did  not  examine  the  report,  were  in 
some  sort  compelled  to  believe  what  was  affirmed  about  it  by  a  Senator 
who  professed  to  have  carefully  read  it,  and  in  consequence  the  repu 
tation  of  the  Louisiana  court  suffered  severely  for  a  while.  But  the 
misrepresentation  soon  became  known  for  what  it  really  was,  and  it 
was  again  thoroughly  exposed,  as  you  very  well  know.  Now,  after  all 
this,  here  are  you  at  the  same  work  again,  parading  anew  the  citation 
proved  to  be  false  half  a  dozen  times.  The  patient  pertinacity  of 
Pope's  spider,  reconstructing  its  web  as  often  as  it  was  swept  away,  is 
the  figure  that  fits  your  case  ;  I  will  not  quote  the  lines  lest  they  offend 
you  by  their  coarseness. 

You  transcribe  a  passage  in  which  you  tell  us  that  the  court  has 
decided  the  validity  of  the  statute  ;  but  you  are  careful  not  to  mention 
the  case  or  the  book  from  which  you  take  it ;  it  is  found,  however,  in 
the  case  of  Bonner  vs.  Lynch,  on  page  268  of  the  25th  Annual. 
There  is  not  in  that  passage,  or  in  that  case,  or  in  that  book,  one  word 
that  alludes  in  the  remotest  manner  to  the  constitutional  question  or 
the  power  of  the  Legislature  to  pass  such  a  law.  The  case,  being  ex 
amined.,  shows  that  no  such  point  was  raised  by  the  record,  or  discussed 
by  counsel,  or  adjudicated  by  the  court.  The  sole  question  was, 
Whether  the  court  had  authority  to  revise  the  proceedings  of  the  Re 
turning  Board  and  correct  its  errors.  Four  judges  concurred  in  the 
opinion  that,  inasmuch  as  no  statute  expressly  gave  them  that  power, 
they  could  take  no  cognizance  of  the  subject,  for  want  of  jurisdiction 
ratione  materice.  You  might  just  as  well  cite  that  case  to  prove  the 
constitutionality  of  the  Reconstruction  law. 

You  claim  that  this  same  case  not  only  establishes  the  validity  of 
the  act  creating  the  Returning  Board,  but  the  conclusive  effect  of  its 
action  ;  whereas,  in  truth  and  in  fact,  the  court  holds  the  direct  con 
trary,  and  says  that  a  certificate  of  the  board  is  merely  prima  facie 
evidence  in  favor  of  the  person  who  gets  it.  How,  indeed,  could  the 
court  have  done  otherwise,  seeing  that  the  statute  itself  declares,  toti- 
dem  verbis,  that  the  certificate  shall  be,  not  conclusive,  "but  prima  facie 
merely  ?  And  here  it  ought  to  be  noted  that,  where  you  profess  to  set 
forth  the  provision  of  the  Legislative  act  which  makes  the  certificate 
of  the  board  evidence,  you  garble  it  shamefully  and  alter  it  to  make  it 
fit  your  assertion  that  it  is  conclusive,  by  cutting  out  the  words  which 
declare  it  to  be  only  prima  facie. 

I  am  not  sure  that  you  have  made  these  misstatements  with  malice 
prepense  : 

"  But  wrong  is  wrought  for  want  of  thought, 
As  well  as  want  of  heart." 


POLITICAL  ESSA  YS  AND  LETTERS.  351 

You  utter  whatever  comes  uppermost,  if  it  seems  to  serve  your 
purpose,  without  stopping  to  consider  whether  it  is  right  or  wrong. 
Added  to  this,  you  have  the  dangerous  gift  of  talking  on  a  subject  you 
know  nothing  about  just  as  well  as  if  you  understood  it.  This  com 
bination  of  mental  qualities  gives  you  a  matchless  skill  at  blundering  : 

"  As  expert  divers  to  the  bottom  fall 
Sooner  than  those  who  can  not  swim  at  all, 
So,  by  this  art  of  writing  without  thinking, 
You  have  a  strange  alacrity  in  sinking." 

Besides  this,  the  obliquity  of  your  moral  vision  prevents  you  from 
seeing  either  facts  or  principles  as  they  are  seen  by  others.  You  have 
no  doubt  that  Wells,  Anderson,  and  the  two  mulattoes,  when  they 
corruptly  altered  and  falsified  the  election  returns,  "  exercised  a  wise 
discretion."  The  manifest  sincerity  with  which  you  make  your  con 
fession  of  this  singular  faith  marks  you  out  for  the  fittest  man  that 
could  have  been  found  to  serve  the  Great  Fraud  by  blaspheming  the 
Constitution  of  a  free  State,  mutilating  her  statutes,  and  imputing  to 
her  judges  absurd  decisions  which  they  never  made. 

But  let  that  pass.  We  will  now  assume  that  the  Eeturning  Board 
was  a  constitutional  body,  vested  with  all  the  power  you  claim  for  it, 
and  also  that  its  certificate  is  conclusive.  Does  it  follow  that  its  action 
is  binding,  if  it  be  fraudulent  ?  No  :  a  tribunal  with  full  jurisdiction 
has  no  more  power  to  commit  fraud  than  a  private  citizen.  A  judg 
ment  of  the  Supreme  Court  of  the  United  States,  upon  a  matter  clearly 
within  its  authority,  is  utterly  void  if  tainted  with  corruption.  No 
paper  of  any  kind,  no  official  certificate,  no  deed,  no  record,  can  weigh 
a  feather  in  the  scale  of  justice,  if  it  has  been  concocted  in  willful 
falsehood,  or  procured  by  actual  deception.  Such  a  paper  or  record, 
when  produced  in  evidence,  has  precisely  the  same  probative  force  as  a 
forgery  :  neither  more  nor  less.  In  saying  this,  we  are  backed  by  the 
good  sense  and  honesty  of  all  mankind,  and  by  rules  of  law  that  are 
universally  accepted.  Nobody  has  yet  dared  to  deny  this  principle. 
No  Kepublican  counselor  met  it  in  argument  when  the  Democratic 
counsel  set  it  forth ;  none  of  the  Eight  responded  when  all  of  the 
Seven  presented  it.  Even  you,  with  all  your  "  strange  alacrity  in  sink 
ing,"  can  not  get  down  low  enough  to  contradict  it. 

Any  court,  any  legislative  body,  any  commissioner  or  arbitrator, 
who  receives  a  paper  known  to  have  been  fraudulently  made,  and  gives 
it  the  effect  of  a  true  one,  or  adopts  it.  as  the  foundation  of  a  judg 
ment,  or  allows  it  to  prejudice  any  opposing  right,  commits  a  most 
scandalous  outrage  upon  law  and  justice.  The  principle  which  ex 
cludes  a  document  tainted  with  that  kind  of  iniquity  is  fundamental, 
axiomatic,  and  necessary  to  the  safety  of  all  rights,  public  as  well  as 
private.  It  is  of  universal  application,  impregnable,  unassailable, 


352  POLITICAL  ESSAYS  AND  LETTERS. 

without  variableness,  or  shadow  of  turning.     It  stands  now  as  it  has 
stood  since  the  beginning  of  the  world, 

"  Whole  as  the  marble,  founded  as  the  rock, 
As  broad  and  general  as  the  casing  air." 

The  Electoral  Commission  was  constituted  with  authority,  clearly 
defined,  to  determine  a  certain,  controverted  matter  of  fact ;  to  wit : 
Whether  Kellogg  and  his  seven  associates  had  been  duly  appointed 
electors  by  the  people  of  Louisiana  or  not.  To  maintain  the  affirma 
tive  side  of  that  issue,  the  certificate  of  the  Returning  Board  was 
alone  relied  upon.  The  eight  commissioners,  against  the  solemn 
protest  of  their  seven  brethren,  accepted  that  certificate  and  held  it  to 
be  good,  nay,  conclusive,  proof  of  the  fact  averred,  although  it  was, 
and  they  knew  it  to  be,  not  only  tainted,  but  saturated  through  and 
through  with  the  most  atrocious  fraud,  and  therefore  as  corrupt  in 
morals  and  as  void  in  law  as  the  nakedest  forgery  that  ever  was  made. 

Thus  it  came  to  pass  that  this  great  cause,  involving  the  title  to 
the  highest  office  in  the  Republic,  was  determined  falsely,  upon  evi 
dence  which  no  justice  of  the  peace  would  receive  in  a  suit  for  the 
price  of  two  sheep.  In  one  of  the  regular  courts  of  the  country,  upon 
a  trial  for  land  or  money,  the  mere  offer  of  such  evidence  by  counsel, 
knowing  its  real  character,  would  be  extremely  dangerous.  It  would 
not  only  be  rejected,  but  the  guilty  counselor  would  be  punished,  not 
in  the  same  way  (for  there  is  a  technical  difference),  but  on  the  same 
principle,  that  courts  punish  the  utterance  of  counterfeit  money.  To 
pollute  the  administration  of  justice,  by  passing  false  and  fraudulent 
documents  upon  a  court,  is  indeed  very  much  worse  than  "shoving 
the  queer"  upon  a  shop-keeper. 

Of  course,  the  wickedness  of  all  this  depends  on  the  scienter.  In 
voluntary  ignorance  would  be  an  excuse.  But  the  corrupt  character 
of  this  certificate  was  known  to  all  the  world,  and,  being  a  public  fact, 
the  commissioners  as  well  as  everybody  else  were  bound  to  know  it ; 
besides  that,  the  evidence  was  exhibited  to  their  eyes ;  their  rejection 
of  it  assumed  it  to  be  true ;  and  they  expressly  ruled  that  no  proof 
of  fraud,  however  clear,  would  diminish  the  value  of  the  false  paper 
in  their  estimation.  So  far  as  I  am  informed,  they  have  never  pre 
tended  to  be  ignorant  of  the  fact  that  this  vote  was  the  offspring  of  a 
fraudulent  conspiracy,  nor  have  they  denied  the  law,  which  makes  it 
void  for  that  reason.  There  is,  therefore,  nothing  for  it  but  to  leave 
their  reputation  for  judicial  integrity,  as  Bacon  left  his  :  "  to  foreign 
countries,  to  future  ages,  and  to  men's  charitable  speeches." 

The  eight  commissioners  and  the  counsel  on  their  side  tried  to 
frame  a  weak  excuse  for  this  dereliction  of  duty  by  reasoning  thus  : 
Congress  gave  the  commission  no  power  but  what  the  two  Houses 
might  have  exercised  themselves  ;  the  two  Houses  had  no  authority  to 


POLITICAL  ESSAYS  AND  LETTERS.  353 

revise  election  returns  from  any  State ;  ergo,  the  commission  must 
receive  a  false,  fraudulent,  and  void  certificate  as  if  it  were  a  real  re 
turn,  true  and  valid.  In  this  syllogism  the  premises,  major  and  minor, 
are  unsound,  and  the  conclusion  is  a  non  sequitur.  Congress  has 
power,  clear  and  unquestionable,  not  to  revise  the  action  of  the  State 
authorities  for  the  purpose  of  correcting  their  mere  errors,  but  to  as 
certain  whether  a  paper  pretending  to  be  a  return  is  a  real  return  or  a, 
fraud.  If  the  two  Houses  are  to  count  the  votes,  they  must  have  the 
verifying  power  which  enables  them  to  determine  what  are  votes  and 
what  are  not.  A  fraud  or  a  forgery  is  not  a  vote.  This  verifying 
power  was  delegated  to  the  commission  with  directions  to  ascertain  by 
it  who  were  duly  appointed.  The  majority  did  not  decline  to  exercise 
the  power ;  they  assumed  it,  took  it  and  executed  it,  but  they  misused 
and  abused  it  so  as  not  to  verify,  but  to  falsify  the  vote. 

You  invoke  the  name  of  Judge  Church,  the  present  Chief -Justice 
of  the  State  of  New  York.  If  that  distinguished,  upright,  and  learned 
gentleman  is  on  your  side  of  this  controversy,  I  admit  that  the  Great 
Fraud  has  a  most  powerful  friend.  But  your  claim  that  he  favors 
your  doctrine  is  prima  facie  evidence  that  he  is  against  you  ;  for,  in 
citing  authorities,  you  are  nothing  if  not  deceptive.  You  give  us  a 
single  sentence  which  you  say  is  his,  but  you  do  not  tell  us  whether 
it  is  from  a  judicial  opinion,  a  published  letter,  or  the  report  of  an 
oral  conversation.  Knowing  "the  sin  that  doth  so  easily  beset  you," 
I  venture  to  say  that  this  quotation  is  in  some  way  false  :  either  you 
have  made  it  out  of  whole  cloth,  or  torn  it  from  its  context,  or  else 
made  an  application  of  it  which  the  author  never  intended.  Let  us 
look  at  it. 

You  make  the  Chief -Justice  say,  that  "  the  authentication  of  the 
election  of  the  presidential  electors,  according  to  the  laws  of  each 
State,  is  final  and  conclusive,  and  that  there  exists  no  power  to  go  be 
hind  them."  This  sentence,  with  its  bad  grammar  and  opaqueness  of 
expression,  is  not  like  Judge  Church's  clear  and  accurate  style.  But 
he  may  have  said  that  the  results  of  an  election,  honestly  authenticated 
by  the  proper  authorities  of  the  State,  according  to  its  laws  and  the 
Acts  of  Congress,  ought  to  be  accepted  as  final  and  decisive  of  all 
antecedent  disputes  about  it.  That  is  no  doubt  his  opinion,  and  I 
firmly  believe  him  to  be  right  on  this  as  on  other  questions  of  law. 
But  does  it  follow  that  a  fraud  or  a  forgery  may  be  regarded  as  a 
proper  authentication  ?  Have  the  two  Houses  of  Congress,  when  they 
come  to  count  the  votes,  no  right  to  distinguish  between  a  true  paper 
and  a  paper  void  for  manifest  corruption  ?  Ask  Judge  Church  to  say 
for  your  comfort  and  assistance  that  Congress  or  any  other  tribunal 
may  lawfully  receive,  and  treat  as  true,  a  false  paper,  known  to  have 
been  concocted  in  willful  fraud.  Instead  of  gratifying  your  wish,  he 
will  make  the  tenderest  vein  in  your  heart  ache  with  his  contempt. 


354:  POLITICAL  ESSAYS  AND  LETTERS. 

Many  persons  are  of  opinion  that  you  did  not  write  the  article  to 
which  your  name  is  appended.  There  is  intrinsic  evidence  that  cer 
tain  parts  of  it  were  not  produced  by  you ;  for  instance,  the  defense 
of  the  carpet-baggers,  which  certainly  nobody  but  one  of  their  own 
number  would  make  now,  since  the  Administration  at  Washington 
has  deserted  them,  and — 

"  From  their  ruined  fortunes  their  familiars  slink  away." 

But  you  are  made  to  appear  as  a  believer  in  the  virtue  of  the 
knaves  who  almost  desolated  Louisiana  by  their  exactions,  taxed  prop 
erty  to  a  point  that  made  it  almost  worthless,  issued  innumerable 
millions  of  fraudulent  bonds,  reduced  public  securities  to  forty  per 
cent,  patronized  larceny  all  over  the  State,  and  left  the  people  to  the 
protection  of  no  law  but  Lynch  law.  The  writer  could  not  ignore 
these  enormities,  for  he  manifestly  had  read — what  you  probably  never 
took  the  trouble  to  look  at — the  reports  made  to  Congress  by  Messrs. 
Potter,  Foster,  Wheeler,  Phelps,  and  others,  which  establish  the  facts 
incontestibly.  It  was  a  sin  and  a  shame  to  make  you  express  admira 
tion  and  respect  for  these  unmitigated  scamps,  and,  facile  as  you  are, 
I  wonder  that  you  submitted  to  it.  They  might  have  spared  you  this 
degradation.  Was  it  not  enough  for  you  to  have  said  that  the  rascal 
ity  of  the  Eeturning  Board  was  "  the  exercise  of  a  wise  discretion  "  ? 

You,  or  somebody  for  you,  have  undertaken  to  repeat  the  amazing 
argument  that  the  Returning  Board  and  the  Electoral  Commission 
were  right  in  disregarding  the  popular  vote  and  setting  aside  the  elec 
tion  in  Louisiana  (free,  full,  and  fair  though  it  was),  because  numerous 
murders  had  been  committed  in  the  State  during  the  period  of  carpet 
bag  rule.  It  was  alleged  that  these  murders  had  been  going  on  stead 
ily  for  years,  at  the  awful  average  of  about  four  every  day,  and  though 
the  perpetrators  of  them  were  well  known,  the  public  authorities  had 
not  taken  measures  to  punish  a  single  one.  Nobody  was  hung  or 
tried  or  even  arrested.  I  did  not  believe  this  story.  It  was  denied  on 
good  authority  and  supported  by  no  credible  evidence.  But  I  insisted 
that,  if  it  was  true,  the  people  were  right  in  turning  out  officers  who 
suffered  such  a  state  of  things  to  exist,  and  electing  others  who  would 
protect  life  by  a  faithful  execution  of  the  laws.  It  did  seem  to  me 
like  a  new  species  of  moral  insanity  to  say  that  the  law-abiding  and 
honest  citizens  of  the  State  should  be  disfranchised  because  they 
had  cast  their  votes  against  officers  who,  besides  being  public  plun 
derers,  had  taken  away  all  security  for  life  by  permitting  four  thou 
sand  murders  in  three  years  to  go  entirely  unpunished. 

Upon  this  you  assert,  or  at  least  sign  your  name  to  an  assertion 
and  publish  it  in  a  magazine  as  yours,  that  I  admitted  the  perpetra 
tion  of  the  murders  referred  to  ;  that  I  justified  them,  alleging  that 
the  State  government  was  too  weak  to  punish  or  prevent  them. 


POLITICAL  ESSAYS  AND  LETTERS.  355 

This  represents  me  as  the  most  inhuman  monster  on  the  earth.  A 
man  who  would  justify  the  unprovoked  assassination  of  four  thousand 
peaceable  and  helpless  persons,  including  women  and  children,  on  the 
mere  ground  that  the  government  was  unable  to  prevent  it,  would  not 
hesitate  to  commit  murder  himself  whenever  he  could  do  it  with  im 
punity.  This  odious  charge  is  pressed  upon  me  explicitly,  and  re 
peated  in  many  forms  through  several  pages  of  violent  denunciation. 
Now,  mark  my  answer  well.  The  man  who  wrote  this  part  of  the 
article  which  passes  for  yours  is  a  base  impostor.  Every  opinion, 
thought,  and  sentiment  expressed  by  me  is  precisely  the  reverse  of 
what  he  imputes  to  me.  I  pronounced  the  story  of  the  four  thousand 
murders  what  I  did  then,  and  do  still  believe  it  to  be,  a  sheer  fabri 
cation  got  up  to  order  for  partisan  purposes.  So  far  from  justifying 
those  murders,  I  declared  that,  if  such  outrages  had  really  been  com 
mitted,  the  carpet-bag  authorities  of  the  State  had  made  themselves 
infamous  by  their  failure  to  punish  them.  Furthermore,  I  averred,  as 
matter  of  fact,  and  showed  it  very  conclusively  to  be  true,  that  the 
State  government  was  armed  with  physical  power  amply  sufficient  to 
enforce  the  law,  preserve  the  peace,  and  protect  life.  All  this  I  said, 
not  in  doubtful  or  obscure  language,  but  so  plainly  that  no  man  with 
intelligence  one  degree  above  that  of  an  idiot  could  misunderstand 
me. 

The  direct,  straightforward  mendacity  of  this  effort  to  defame  me 
is  literally  wonderful.  I  speak  soberly  and  without  passion,  when  I 
say  that  I  think  there  is  nothing  like  it  on  record.  No  reader  will  be 
able  to  conceive  the  grossness  of  it  without  comparing  your  article  at 
pages  225-227  with  mine  at  pages  9-11.  Even  then  he  will  not  un 
derstand  it  unless  he  looks  narrowly  at  the  passages  which  the  writer 
pretends  to  copy  from  me.  They  are  all  fraudulently  changed  and 
altered.  My  disbelief  in  the  murder  stories  of  Sheridan  and  Sher 
man,  my  detestation  of  those  crimes  if  they  were  in  truth  committed, 
and  of  the  government  which  could  punish  them  and  did  not — my 
unequivocal  expression  of  these  sentiments  are  suppressed  and  ex 
scinded  from  the  passages  quoted.  Disconnected  sentences  are  picked 
out  from  different  places,  mutilated,  transposed,  and  then  joined  to 
gether  as  if  I  had  written  them  continuously  in  that  order,  whereby 
the  whole  sense  and  meaning  of  my  words  are  perverted.  I  am  made 
out  to  be  an  apologist  for  murder  and  mob  violence,  just  as  you  might 
prove  from  the  Bible  that  there  is  no  God.  This  is  not  an  indictable 
forgery,  but  many  a  man  has  served  out  his  term  at  Sing  Sing,  who 
would  scorn  an  attempt  to  ruin  his  neighbor  by  the  fraudulent  making 
or  alteration  of  a  paper  writing  to  the  prejudice  of  his  character. 

I  am  told,  and  I  incline  to  believe,  that  you  did  not  write  this  part 
of  the  article  which  passes  for  yours.  Some  smart  carpet-bagger  put 
it  together,  and  gave  it  to  you,  to  try  how  much  he  could  make  you 


356  POLITICAL  ESSAYS  AND  LETTERS. 

disgrace  yourself  for  his  amusement  or  his  malice,  and  you  put  your 
name  to  it  without  knowing  whether  it  was  right  or  wrong.  This  re 
lieves  you  from  the  imputation  of  deliberate  falsehood  ;  but  why,  oh  ! 
why  were  you  silly  enough  to  become  the  cat's-paw  of  such  a  mischiev 
ous  monkey  ? 

I  have  spoken  mainly  of  the  Louisiana  case,  because  that  is  the  one 
of  which  you  ought  to  have  some  special  knowledge.  You  have,  how 
ever,  gone  into  Florida,  and  tried  to  defend  the  decision  in  favor  of 
that  fraud.  As  might  have  been  expected,  you  make  a  bungle  of  it. 
I  will  restate  the  points  as  held  by  the  Commission  so  far  as  you  at 
tempt  to  indicate  them. 

Professing  to  vindicate  the  great  principle  of  State  rights,  the 
Commissioners  forced  upon  Florida  electors  whom  the  State  had  re 
jected  when  she  made  her  own  choice,  and  against  whom  all  the  de 
partments  of  her  government  had  protested.  .  The  fraudulent  nullity 
manufactured  by  two  canvassing  officers  was  allowed  to  outweigh  the 
will  of  the  State,  as  expressed  by  her  executive,  her  Legislature,  and 
her  courts,  as  well  as  the  solemn  voice  of  her  people  in  their  pri 
mary  capacity. 

The  Commission  invested  the  canvassing  officers  with  judicial  au 
thority,  and  held  that  their  certificate  was  the  decree  of  a  tribunal. 
It  is  perfectly  certain  that  by  the  law  of  the  State  the  canvassing  offi 
cers  have  no  such  power.  The  act  of  the  Legislature  does  not  give  it 
to  them,  and  the  Supreme  Court  of  the  State  had  decided  in  the 
most  emphatic  manner  that  their  duties  were  purely  ministerial. 

The  Commissioners  went  another  step.  Two  clerks  being  meta 
morphosed  into  judges,  contrary  to  the  law  of  the  State,  it  was  next 
maintained  that  their  fraudulent  act  was  as  good  as  an  honest  judg 
ment,  and  this  was  against  the  law  of  the  whole  civilized  world. 

All  the  questions  of  law  and  fact  controverted  before  the  Commis 
sioners,  with  reference  to  the  vote  of  Florida,  had  been  adjudicated  by 
a  State  court  of  competent  jurisdiction  in  a  cause  between  the  same 
parties.  It  was  not  open  to  another  hearing.  But  the  eight  Commis 
sioners,  reckless  of  their  plain  duty,  or  not  understanding  it,  though 
warned  by  their  brethren,  made  a  decision  diametrically  opposite,  and 
the  fraud  that  had  been  legally  crushed  was  restored  to  another  life. 

It  might  be  possible  for  a  very  ingenious  man  to  gloss  over  these 
anomalous  rulings  with  some  appearance  of  plausibility.  But  your 
argument  only  sets  them  in  a  worse  light.  Your  weak  and  awkward 
defense  of  them  will  convince  any  intelligent  man  who  reads  it  that 
they  are  wholly  indefensible.  If  the  Commissioners  were  not  ashamed 
of  their  errors  before,  they  must  have  blushed  when  they  saw  them 
supported  by  such  twaddle  as  yours. 

You  are  naturally  offended  by  my  reference  to  the  conduct  of  Mr. 
Sherman's  visiting  committee,  of  which  you  were  one.     You  call  it 


POLITICAL  ESSAYS  AND  LETTERS.  357 

an  attack  ;  but  I  meant  it  for  the  best  defense  I  was  able  to  furnish  ; 
and  I  will  not  now  be  provoked  to  utter  one  harsh  word  about  them. 
I  am  willing  to  admit  that,  when  I  said  they  "  aided  and  abetted,  by 
every  means  in  their  power,  the  perpetration  of  the  Great  Fraud,"  I 
used  too  strong  an  expression. 

Their  case  is  too  serious  to  be  dealt  with  lightly.  So  far  as  depends 
on  me,  I  will  not  suffer  them  to  be  prejudiced  by  your  blundering  ad 
vocacy.  But  they  have  hurt  themselves  very  much  by  declaring  insin 
cerely  and  untruly  that  they  went  to  Louisiana  only  to  witness  the 
count  of  the  electoral  vote  by  the  Returning  Board.  Nobody  believes 
that  they  would  drop  their  affairs  at  home,  start  immediately  after  the 
election,  travel  all  the  way  to  Louisiana,  and  stay  there  at  great  ex 
pense  for  a  month,  merely  that  they  might  be  present  as  spectators 
when  Wells,  Anderson,  and  the  two  mulattoes  would  cypher  up  the 
returns.  No ;  they  meant  business  of  some  kind,  good  or  evil,  and 
evil  is  always  suspected  of  that  which  covers  itself  under  a  sham. 
Another  pretense  of  theirs  fails  to  bear  examination.  They  said  they 
could  not  advise  an  honest  count  or  reprobate  a  false  one  without  fear 
of  offense  to  the  returning  officers.  This  extreme  delicacy  is  all  simu 
lated.  Nothing  could  be  more  ridiculous  than  the  idea  that  the  com 
mittee  was  restrained  by  politeness  from  interfering  to  stop  the  fraud, 
if  they  wanted  it  stopped.  They  could  have  crushed  it  with  a  word. 
If  they  had  simply  said  that  an  honest  count  must  be  made  of  all  the 
legal  votes  actually  cast,  and  that  no  man  should,  with  their  consent, 
be  recognized,  protected,  or  rewarded  for  falsifying  or  fraudulently 
altering  returns,  the  conspiracy  would  have  dissolved  that  instant. 
Their  refusal  to  do  this  or  something  equivalent,  when  pressed  and 
solicited  by  the  Democratic  committee,  needs  to  be  vindicated  by  some 
better  reason  than  any  that  has  yet  been  given. 

They  not  only  did  not  prevent  the  Great  Fraud  when  they  might 
have  done  it  so  easily,  but  they  encouraged  it,  intentionally  or  uninten 
tionally,  by  telling  the  conspirators  that  power  to  disfranchise  the 
citizens  of  the  State  might  constitutionally  be  exercised  by  the  Return 
ing  Board  ;  and  to  give  this  plausibility  they  cited  a  void  statute  and 
a  decision  of  the  Supreme  Court  which  had  never  been  made.  By 
reasoning  wholly  unsound  they  made  the  conspirators  believe  that  if 
they  put  their  fraud  into  the  "forms  of  law,"  it  could  never  be  ques 
tioned. 

Moreover,  after  the  fraudulent  alteration  of  the  vote  had  been 
made,  they  pronounced  it  a  righteous  thing.  How  far  they  were  con 
scientious  in  this,  I  do  not  pretend  to  say.  But  if  a  man  approves  of 
a  consummated  crime,  it  does  not  require  much  faith  in  human  weak 
ness  to  believe  that  he  might  have  helped  it  along  while  it  was  yet  in 
fieri. 

Again  :  the  chairman  of  the  visiting  committee  has  since  become 


358  POLITICAL  ESSAYS  AND  LETTERS. 

Secretary  of  the  Treasury,  and  controls  the  appointment  and  removal 
of  custom-house  officers  at  New  Orleans  as  well  as  elsewhere.  Wells 
is  Surveyor  of  the  Port,  and  Anderson  is  Deputy  Collector.  Are  these 
offices  the  consideration,  in  whole  or  in  part,  of  their  corrupt  service  in 
the  Returning  Board  ?  What  other  claims  to  those  lucrative  and  highly 
responsible  places  could  be  preferred  by  this  brace  of  detected  criminals  ? 

Though  these  facts  make  an  impression  very  unfavorable  to  the 
committee,  they  are  but  moral  circumstances.  The  public  is  not  yet 
in  possession  of  any  direct  evidence  which  shows  either  of  them  to 
have  actually  participated  in  concocting  perjured  affidavits,  bargained 
for  falsified  records,  or  made  special  promises  of  reward  for  corrupt 
services.  All  of  them  are  men  of  good  general  reputation ;  most  of 
them  stand  so  high  that  a  charge  against  them  of  willful  dishonesty, 
unless  supported  by  overwhelming  proof,  must  be  rejected  as  incredi 
ble.  Some,  perhaps,  were  tied  to  the  tail  of  the  committee  who  had 
not  knowledge  enough  of  the  subject  to  make  them  fairly  responsible 
for  what  they  said  or  did.  You  yourself  are  in  no  danger  if  you  get 
proper  credit  for  your  mental  imbecility ;  at  least  I  think  it  can  be 
easily  shown  that  great  allowance  ought  to  be  made  for  you  on  that 
score. 

I  come  now  to  your  abuse  of  the  Buchanan  Administration.  It  is 
as  difficult  to  analyze  as  the  scolding  of  a  fish-woman.  But  out  of 
your  reckless  and  half-crazy  circumlocution  I  am  able  to  extract  the 
following  charges  : 

1.  That  the  President  and  other  members  of  the  Administration 
were  in  favor  of  the  secession  movement,  and  desired  its  success. 

2.  That  to  make  it  successful  they,  and  particularly  the  President 
himself,  behaved  treacherously  and  unfaithfully  to  the  Federal  Gov 
ernment. 

3.  That  the  President  combined  with  secessionists  in  the  treason 
able  plot  to  break  up  the  Union,  establish  an  independent  Southern 
Confederacy,  and  cause  it  to  be  recognized  as  a  separate  nation  by  for 
eign  governments. 

4.  That,  in  pursuance  of  this  plot,  and  to  carry  it  out,  the  Presi 
dent  not  only  abandoned  but  denied  the  right  of  the  Government  to 
preserve  itself  or  to  maintain  its  authority,  or  to  execute  its  laws,  or 
to  put  down  resistance  by  force. 

5.  That,  as  a  consequence  of  these  and  other  evil  deeds,  the  Bu 
chanan  Administration  became  accursed  as  the  cause  of  the  Civil  War, 
with  all  its  loss  of  blood  and  treasure. 

I  will  not  now  write  an  essay  on  the  history  of  that  period,  or  go 
into  a  general  explanation  of  the  events  which  took  place  on  the  eve 
of  the  war.  I  am  wholly  on  the  defensive,  and  my  present  «duty  is 
merely  to  state  certain  facts  already  well  known,  and  which  show  that 
your  charges  are  false  and  groundless. 


POLITICAL  ESSA  YS  AND  LETTERS.  359 

Mr.  Buchanan's  regular  message  of  December,  I860,  addressed  to 
a  Congress  in  which  all  the  Northern  and  Southern  States  were  repre 
sented,  is  an  unanswerable  argument  against  the  right  of  separation, 
and  the  most  powerful  appeal  for  union  and  harmonious  obedience  to 
law  that  ever  was  made  to  the  American  people,  excepting,  perhaps, 
Washington's  Farewell  Address  and  Jackson's  Proclamation.  No  one 
can  read  it  now  without  feeling  that  if  his  wise  counsels  had  been 
heeded,  the  unity  of  the  Republic  would  have  been  preserved  in  the 
bonds  of  a  lasting  peace. 

Only  those  who  know,  of  their  own  knowledge,  what  relations 
actually  existed  between  the  Administration  and  the  leading  advocates 
of  separation,  can  see  how  preposterous  is  the  charge  of  a  conspiracy 
between  them.  For  many  Southern  gentlemen  the  President,  no 
doubt,  had  a  warm  affection  which  it  was  not  easy  to  tear  from  his 
heart ;  and  their  attachment  to  him  had  been  long  and  faithful.  But 
the  moment  he  assumed  his  public  attitude  of  opposition  to  their  move 
ment,  they  fell  away  from  him  in  a  body  and  became  his  unanimous 
enemies,  as  far  as  they  could  be  so  consistently  with  their  respect  for 
his  acknowledged  personal  virtues.  Even  the  Southern  members  of 
his  cabinet  could  not  reconcile  it  with  their  principles  to  hold  office 
under  him.  The  great  gulf,  soon  to  be  filled  with  blood  and  fire,  was 
already  opened.  The  Administration  was  on  one  side  of  it,  and  all 
secessionists  on  the  other.  Does  that  look  like  a  combination  to  effect 
a  common  purpose  by  concert  of  action  ? 

Not  less  absurdly  false  is  the  charge  that  the  Administration  denied 
the  power  of  the  Federal  Government  to  maintain  its  just  supremacy 
by  force. 

We  held  not  only  that  no  right  of  separation  existed,  and  as  a  logi 
cal  consequence  that  all  State  ordinances  of  secession  were  mere  nulli 
ties,  but  we  claimed  for  the  Government  of  the  Union  the  right  to 
save  its  perfect  integrity  by  the  use  of  all  the  physical  force  which 
might  be  found  necessary.  This  power  was  given  by  the  Constitution 
itself,  according  to  our  exposition  of  it,  thus  : 

To  take  or  retake  and  keep  possession  of  all  forts,  arsenals,  dock 
yards,  custom-houses,  post-offices,  land,  and  oth^r  public  property  of 
the  United  States  ;  to  collect  the  duties,  imposts,  and  taxes  wherever 
due ;  to  execute  the  laws,  by  enforcing  the  judgments  of  the  Federal 
courts,  and  the  legal  orders  of  all  Federal  officers,  and  to  do  this  by 
military  power  wherever  the  civil  authority  is  not  strong  enough  : 
these  are  the  coercive  powers  bestowed  on  the  General  Government  for 
its  own  preservation,  and  these,  instead  of  being  abandoned  by  the 
Buchanan  Administration,  were  most  distinctly  asserted. 

What  we  did  deny  was,  the  right  of  the  United  States  to  make  war 
upon  a  State  as  a  State,  declare  all  the  inhabitants  beyond  the  pro 
tection  of  law,  and  put  them  all  to  the  sword  as  public  enemies,  for 


360  POLITICAL  ESSAYS  AND  LETTERS. 

theoretical  heresies  expressed  by  a  few  of  them,  in  the  form  of  void 
ordinances.  We  thought,  as  Washington,  Madison,  and  Jackson 
thought  and  said  on  similar  occasions,  that  the  force  which  supported 
the  law  ought  to  be  directed  against  the  individuals  who  opposed  it, 
and  not  against  innocent  persons  who  happened  to  live  in  the  same 
State. 

The  United  States,  being  (within  certain  limits)  a  sovereign  Gov 
ernment,  to  which  obedience  was  due  directly  from  the  people,  it  took 
no  notice  of  State  lines,  and  could  not  make  war  upon  a  State  any 
more  than  a  State  could  make  war  upon  a  county.  The  opposite  doc 
trine,  which  would  interpose  the  State  between  the  people  and  the 
Federal  Government,  was  the  doctrine  of  the  secessionists,  which  we 
rejected  as  unsound  and  heretical. 

If  the  Executive  had  at  that  time  opened  an  indiscriminate  and 
aggressive  war,  it  would  not  only  have  been  lawless  murder,  but  it 
would,  as  every  one  now  can  see,  have  ended  in  complete  disaster,  and 
the  cause  of  the  Union  must  have  utterly  perished. 

The  executive  function  is  confined  by  the  statute-book,  as  well  as 
the  Constitution.  The  President  could  not,  and  he.  said  plainly  that 
he  would  not,  violate  his  oath  of  office  by  usurping  powers  which  the 
law  withheld  from  him.  But  Congress  could  give  him  all  that  was 
needed.  It  did  not  do  so.  On  the  9fch  of  January  he  sent  in  a  special 
message,  describing  the  dangers  to  which  the  Union  was  exposed  by 
the  inaction  of  Congress,  and  showing  the  inadequacy  of  his  means  to 
control  the  rising  revolution.  Congress  would  not  vote  a  man  or  a 
dollar,  nor  in  any  way  strengthen  the  executive  hand. 

That  these  views  of  legal  and  constitutional  duty  were  true  and 
right  is  not  open  to  the  slightest  doubt.  Except  the  Southern  mem 
bers  who  retired,  all  the  Cabinet  fully  and  heartily  concurred  in  them. 
General  Cass,  General  Dix,  Mr.  Holt,  Mr.  Stanton,  Mr.  Toucey,  and 
Mr.  King  were  as  true  to  them  as  I  was,  and  of  course  supported  them 
with  much  greater  ability.  We  differed  several  times  with  one  an 
other  and  with  the  President,  on  points  of  policy  ;  but  on  the  law  we 
were  of  one  mind  and  one  heart.  Our  exposition  of  it  was  not,  to  my 
knowledge,  thought  or  said  to  be  erroneous  by  any  member  of  that 
Congress.  Our  successors,  of  the  Lincoln  Administration,  adopted  it 
in  all  its  length  and  breadth.  To  this  day  no  lawyer  of  average  ability 
has  ever  fairly  considered  it  and  then  candidly  put  in  a  dissent.  It  is 
so  manifestly  correct — so  simply  just,  and  right — that  all  men  agree 
to  it. 

Such  being  the  true  state  of  the  case,  as  the  record  shows,  you 
assail  the  Buchanan  Administration  with  filthy  abuse,  and  charge  Mr. 
Buchanan  himself,  not  only  with  entertaining  opinions  totally  differ 
ent  from  those  he  actually  held  and  expressed,  but  with  criminal  acts 
of  the  darkest  dye. 


POLITICAL  ESSAYS  AND  LETTERS.          .        361 

Apart  from  the  palpable  falsehood  of  these  accusations,  your  at 
tempt  to  criticise  a  man  like  Mr.  Buchanan  is  unpardonably  presumpt 
uous.  Your  judgment  upon  his  character  or  conduct,  even  if  hon 
estly  expressed,  is  not  worth  a  straw.  Doubtless  he  had  his  share  of 
imperfections ;  but  how  could  you  tell  his  faults  from  his  virtues  ? 
You  believe  that  the  fraudulent  alteration  of  election  returns  to  cheat 
a  nation  is  the  "  exercise  of  a  wise  discretion  "  ;  you  believe  the  Louisi 
ana  returning  law  to  be  just  and  constitutional ;  you  believe  it  right 
to  quote  a  judicial  decision  for  a  principle  which  the  case  does  not 
contain  :  how,  then,  can  any  moral  standard  of  yours  be  applied  to  a 
statesman  whose  life  was  upright,  pure,  and  patriotic  ?  Your  faith  in, 
and  affection  for,  the  carpet-bag  knaves  makes  it  a  necessity  of  your 
nature  to  vilify  Buchanan,  who  was  in  all  things  their  opposite.  His 
intellectual  as  well  as  his  moral  superiority  puts  you  so  widely  apart 
that  you  can  never  know  anything  whatever  about  him.  I  do  not 
wish  to  exaggerate  his  magnitude  or  your  littleness  ;  and  I  could  not 
if  I  would  try  ;  for  no  comparison  of  mine  can  describe  the  difference 
between  you.  Hyperion  and  a  satyr ;  the  towering  eagle  and  the 
mousing  owl ;  the  King  of  the  Titans  and  the  dwarf  at  his  foot ;  the 
builder  of  the  solemn  temple  and  the  fly  on  one  of  its  columns — none 
of  these  trite  similes  gives  an  idea  of  the  immeasurable  distance  which 
separates  you  from  him.  Nobody  expects  the  scurvy  politician,  who 
busies  himself  fixing  up  false  election  returns,  to  understand  the 
thoughts,  motives,  or  acts  of  the  incorruptible  magistrate  whose  walk 
is  on  the  mountain  ranges  of  the  law. 

Let  us  look  for  a  moment  at  your  method  of  supporting  the  charges 
you  make,  and  see  how  worthy  it  is  of  you  and  your  carpet-bag  associ 
ates.  In  substance,  your  accusations  are  that  he  and  his  Administra 
tion,  being  in  complicity  with  treason,  favored  the  right  of  the  States 
to  separate  from  the  Union  at  pleasure,  and,  in  the  interest  of  the 
seceding  States,  denied  the  power  of  the  General  Government  to  main 
tain  its  authority  by  force.  The  message  honestly  quoted  proves  ex 
actly  the  reverse.  But  you  suppress  all  that  it  contains  upon  those 
subjects,  and  quote  certain  sentences  relating  to  a  totally  different 
matter,  namely,  the  right  of  the  General  Government  to  make  aggres 
sive  war  upon  a  State,  and  all  the  people  thereof,  without  regard  to 
their  personal  guilt  or  innocence.  Because  he  shows  that  the  Consti 
tution  has  wisely  withheld  this  power  from  both  the  President  and 
Congress  you  say  that  he  abandoned  and  denied  the  other  powers 
which,  in  fact,  he  asserted  and  claimed  in  that  same  message. 

I  do  not  ask  if  this  be  a  fair  way  to  defame  a  man  whom  death 
has  disarmed  of  the  power  of  self-defense,  for  I  suppose  that,  in  your 
eyes,  it  is  eminently  proper.  You  have  no  doubt  that  it  is  "a  wise 
discretion,"  like  that  of  Wells  and  Anderson  when  they  transposed 
the  figures  on  the  return  from  Vernon  Parish.  The  trick,  to  be  sure, 


362  POLITICAL  ESSA  YS  AND  LETTERS. 

is  perfectly  transparent ;  but  your  mental  caliber  is  just  small  enough 
to  let  you  think  that  even  a  detected  falsehood  is  better  than  none. 

Nor  would  I  advise  you  to  cease  your  vituperation  of  the  dead 
President.  His  memory  is  intensely  hated  by  many  powerful  persons 
to  whom  his  dignified  and  virtuous  life  was  a  constant  reproach.  To 
slander  him  is  the  surest  way  to  curry  favor  with  them,  and  they  can 
assist  you  to  get  a  foreign  mission,  or  some  other  office  for  which  you 
are  equally  unfit.  Lose  no  opportunity,  therefore,  of  being  super- 
serviceable.  Take  every  occasion  to  load  up  as  much  dirt  as  your  little 
cart  can  carry,  and,  however  far  it  takes  you  out  of  your  way,  drive 
around  and  dump  it  on  the  grave  of  Buchanan.  It  will  not  disturb  his 
repose,  and  no  doubt  it  will  increase  your  chances  of  promotion  very 
much. 

It  is  always  more  or  less  awkward  to  speak  of  one's  self.  But  you 
have  dragged  my  individual  life  into  this  discussion,  and  falsely  ac 
cused  me  of  gross  misbehavior.  I  shall  make  my  defense  with  as  little 
egoism  as  the  nature  of  the  case  will  permit. 

You  have  positively  averred,  published,  and  proclaimed  that  I 
adopted  the  views  of  the  secessionists,  and  entered  into  a  "  devilish 
cunning  "  conspiracy  with  them  to  destroy  the  Union  ;  that  I  brought 
the  "  accursed  Administration  "  into  this  traitorous  combination,  ex 
pressed  the  opinion  that  each  State  had  a  right  to  separate  from  the 
Union  at  pleasure,  and  declared  the  Government  destitute  of  all 
power  to  preserve  itself  by  compelling  obedience  to  its  laws,  with  much 
more  to  the  same  effect. 

To  this  I  oppose  my  explicit  denial.  I  declare  that  all  you  say 
about  me  in  this  connection  is  perfectly  and  entirely  false,  not  only  in 
its  general  tenor,  but  in  every  detail.  No  act  that  I  ever  did,  no  line 
that  I  ever  wrote,  no  word  that  I  ever  spoke,  can  give  the  slightest 
support  to  any  one  of  your  charges.  On  the  contrary,  all  my  utter 
ances,  public  and  private,  are  diametrically  the  reverse  of  this. 

Up  to  this  point  I  have  been  willing  to  excuse  you  on  the  score  of 
incapacity.  You  could  not  be  expected  to  see  the  unconstitutionality 
of  the  Returning  Board  law,  or  the  legal  right  of  the  people  to  choose 
their  own  electors,  or  the  dishonesty  of  altering  election  returns,  or 
the  rule  that  fraud  makes  void  whatever  it  taints  by  its  touch.  In 
quoting  the  Louisiana  court  to  prove  a  principle  which  it  did  not 
mention,  perhaps  you  only  repeated  like  a  parrot  what  others  said 
before,  without  knowing  what  it  meant.  When  you  asserted  the  con- 
clusiveness  of  the  Returning  Board's  action  on  the  authority  of  the 
statute,  and  a  judicial  decision,  you  may  have  omitted  the  words 
"prima  facie"  from  your  rendering  of  both,  because  you  thought 
that  conclusive  and  prima  facie  were  synonymous  terms.  You  prob 
ably  did  not  write  that  part  of  your  article  which  most  falsely  accuses 
me  of  admitting  and  justifying  the  murder  of  innocent  and  helpless 


POLITICAL  ESSAYS  AND  LETTERS.  363 

people  by  thousands.  All  your  misstatements  upon  the  Florida  case 
could  be  accounted  for  by  your  lack  of  legal  knowledge.  Even  your 
misrepresentation  of  Mr.  Buchanan  might  be  considered  the  unavoid 
able  blunder  of  a  narrow  mind  struggling  with  a  subject  beyond  its 
comprehension.  But  this  slander  of  me  is  a  different  thing.  Giving 
you  credit  for  as  much  ignorance  as  you  can  possibly  plead,  and  mak 
ing  all  allowance  for  the  curious  moral  strabismus  with  which  you  are 
afflicted,  still  judgment  must  go  against  you,  that  here  you  have  will 
fully  broken  the  ninth  commandment. 

Manifestly  you  sought  most  diligently  for  evidence  to  show  that  I 
had  been  opposed  to  the  Union,  favored  secession,  and  advised  against 
the  right  of  the  Government  to  execute  its  own  laws.  The  further 
you  went  in  your  search,  the  more  proofs  you  found  to  contradict  the 
calumny  which  you  had  predetermined  to  utter,  and  you  found  abso 
lutely  nothing,  for  nothing  existed,  to  sustain  it.  But,  true  to  the 
morality  of  the  Eeturning  Board,  you  resolved  to  make  what  you  could 
not  find.  You  took  my  opinion  of  20th  November,  1860,  and  there 
you  saw  an  exposition  of  the  subject  precisely  the  opposite  of  that 
which  you  wished  to  impute  to  me.  Then  you  falsified  the  record, 
suppressed  what  I  actually  wrote,  and  attributed  to  me  sentiments 
which  I  never  entertained  or  uttered.  Your  account  of  the  paper  and 
its  contents  is  not  only  different  from,  but  directly  contrary  to,  all  that 
is  contained  in  the  paper  itself. 

That  is  bad  enough,  but  that  is  not  the  worst  of  it.  In  order  to 
give  some  show  of  authenticity  to  your  false  version  of  my  opinion, 
you  pretended  to  transcribe  a  paragraph  ;  but  your  transcript  is  basely 
fraudulent.  Let  any  man  take  volume  ix  of  the  Attorney-General's 
opinions,  look  at  this  one  on  page  523,  and  compare  your  pretended  copy 
with  the  original.  You  pick  out  sentences  here  and  there  from  differ 
ent  places,  and  present  them  to  your  readers  as  if  I  had  written  them 
continuously.  What  you  strike  out  is  absolutely  necessary  to  a  proper 
understanding  of  what  you  leave  in.  A  most  serious  and  embarrassing 
difficulty  had  been  brought  upon  the  Administration  by  the  resigna 
tion  of  all  the  Federal  officers  in  South  Carolina.  The  President, 
anxious  to  perform  his  whole  duty,  required  my  advice.  Of  course,  I 
did  not  say  that  this  was  casus  belli  as  against  the  State.  "We  could 
not  lawfully  kill  the  whole  population  because  our  officers  vacated  the 
places  to  which  we  had  appointed  them.  Military  force  might  be  sent 
there  to  aid  the  civil  officers  in  executing  the  laws,  but  we  must  first 
have  civil  officers  to  be  aided.  For  this  I  gave  reasons  which  any  one 
who  reads  the  opinion  will  perceive  to  be  entirely  satisfactory.  You 
make  me  talk  nonsense  about  it ;  I  seem  to  propound  a  question  which 
I  do  not  answer  ;  to  describe  a  difficulty  without  proposing  any  relief, 
and  to  draw  a  conclusion  from  no  premises.  Having  thus  deprived 
the  passage  of  its  real  meaning,  you  ascribe  to  it  a  false  one,  and  assert 


364:  POLITICAL  ESSAYS  AND  LETTERS. 

that  it  contains  sentiments  inspired  by  "treasonable  allies"  of  the 
Administration  "in  aid  of  the  great  rebellion." 

In  law  this  is  not  a  forgery.  But  among  men  of  average  honesty 
the  fraudulent  alteration  of  a  paper  to  injure  another's  character  passes 
for  about  as  shameful  and  base  a  thing  as  can  be  done.  Let  me  illus 
trate  by  cases  which  I  need  not  say  are  merely  hypothetical : 

Suppose  yourself  appointed  to  the  mission  you  have  sought  so  ear 
nestly.  You  wish  to  ruin  some  man,  or  woman,  by  trumping  up  a  false 
accusation  against  him,  or  her,  and  you  try  to  do  it  by  diplomatically 
misrepresenting  the  contents  of  a  written  document  which  you  have 
in  your  possession  and  from  which  you  make  false  quotations  ;  you  are 
detected  and  exposed  :  what  would  be  done  with  you  ?  All  further 
intercourse  with  you  would  be  declined  ;  your  recall  would  be  imme 
diately  demanded ;  you  would  be  kicked  out  of  the  country  as  igno- 
miniously  as  the  rules  of  international  law  would  permit. 

Imagine  yourself  in  court  as  a  counselor  with  a  paper  in  your  hand 
whose  contents  it  is  necessary  for  you  to  make  known  ;  you  misstate 
the  whole  tenor  and  purpose  of  it ;  you  pretend  to  read  a  part  of  it, 
but  read  it  so  falsely  that  the  true  sense  of  it  is  altogether  obscured. 
If  you  are  caught  in  the  trick  you  are  certain  to  be  expelled  from  the 
profession. 

Suppose  another  case  :  A  Federal  officer  is  impeached  for  being 
engaged  in  a  conspiracy  against  the  Government,  and  you,  being  a  wit 
ness,  testify  positively  that  he  is  guilty  because  you  have  seen  a  paper 
written  by  the  accused  in  which  sentiments  are  expressed  favorable  to 
the  conspiracy  and  hostile  to  the  right  of  the  Government  to  execute 
its  own  laws.  Moreover,  you  produce  a  copy,  made  by  yourself,  of  a 
paragraph,  which  you  swear  to  be  plenary  proof  of  an  intent  to  sur 
render  the  power  of  the  Union  to  the  conspirators.  After  that  you 
are  indicted  for  perjury,  and  it  is  proved  that  no  such  sentiment  was 
expressed  in  the  paper,  but  the  direct  contrary,  and  that  your  copy  is 
a  false  copy,  palpably  made  for  the  purpose  of  deception  :  would  you 
have  a  defense  ?  Could  you  escape  conviction  ?  If  convicted,  what 
would  become  of  you  ? 

Of  course,  you  have  never  done  either  of  these  supposed  acts.  I 
put  the  cases  merely  to  bring  the  principle  down  to  a  level  with  your 
understanding,  and  to  show  you  how  dangerous  is  the  practice  you  in 
dulge  in  of  falsifying  documents  and  misstating  their  contents.  When 
you  see  how  it  would  work  if  carried  out  into  other  departments  of 
business  you  will  comprehend  the  iniquity  of  trying  to  fasten  the  high 
est  crimes  upon  innocent  persons,  dead  and  alive,  by  such  methods  as 
you  have  adopted. 

As  to  Oregon,  it  was  not  asserted  before  the  Commission  that  any 
thing  criminal  had  been  committed.  The  question  whether  Cronin 
or  Watts  was  elected  involved  a  doubtful  and  difficult  question  of  law 


POLITICAL  ESSA  YS  AND  LETTERS.  365 

on  which  there  were  different  opinions  and  judicial  authorities  seri 
ously  conflicting.  That  Governor  Grover  decided  it  honestly,  and  ac 
cording  to  his  best  judgment,  there  can  be  no  doubt  in  the  minds  of 
reasonable  and  fair-minded  men.  The  presumption  that  he  acted  with 
all  due  fidelity  to  the  law  is  much  strengthened  by  your  assertion  that 
he  was  guilty  of  "loathsome  fraud."  Your  abuse  of  any  man  is  very 
powerful  evidence  in  his  favor. 

In  like  manner  I  take  your  diatribe  upon  Mr.  Tilden  and  the  New 
York  Democracy.  I  know  nothing  of  the  matters  you  refer  to  ;  but 
I  do  not  believe  a  word  you  say.  Eemembering  your  monstrous  false 
hoods  about  Mr.  Buchanan ;  seeing  the  large,  loose,  and  lavish  men 
dacity  of  your  charges  against  myself,  and  applying  the  maxim,  falsus 
in  uno  falsus  in  omnibus,  I  can  only  regard  your  abuse  of  Mr.  Tilden 
as  strong  proof  that  he  is  a  just,  upright,  and  honorable  gentleman. 
Thus  you  furnish  me  with  a  cheap  and  easy  mode  of  praising  him. 
The  chosen  chief  of  the  nation  swindled  of  his  right  does  not  want 
any  eulogy  from  me.  But  if  I  am  called  upon  to  show  the  grounds 
of  his  title  to  general  respect  and  admiration  I  need  not  describe  the 
irreproachable  walk  of  his  private  life  or  his  high  public  career — his 
brilliant  eloquence  or  his  solid  judgment — his  tireless  struggle  against 
corruption  in  the  city  of  New  York,  or  his  beneficent  administration  of 
the  State  government — it  is  enough  that  I  simply  show  your  attempt 
to  defame  him  ;  for  that  itself  is  a  decoration  of  his  character. 

Your  fling  at  Messrs.  Field  and  Carpenter  is  hardly  worth  notice. 
Far  as  they  stand  above  your  reach,  you  attempt  to  malign  their  mo 
tives  for  opposing  the  Great  Fraud  ;  those  of  one  you  pronounce  to  be 
mercenary,  and  of  the  other  " mixed  and  mysterious."  They  belong 
to  a  class  of  men  who  act  habitually  upon  motives  which  must  always 
be  a  mystery  to  you,  for  you  can  not  comprehend  them.  You  chuckle 
over  the  fact  that  their  logic  and  eloquence  was  unsuccessful.  That 
is  proper  enough. 

The  decision  of  the  Commissioners  gave  to  stupidity  and  fraud  a 
great  triumph  over  the  honesty  and  ability  of  Messrs.  Field  and  Car 
penter,  and  in  this  triumph  you  have  an  unquestioned  right  to  rejoice. 
You  add  that  "  their  joint  effort  before  the  Commission  was  a  not  in 
efficient  aid  in  preparing  the  minds  of  their  auditors  for  the  judicial 
result  which  followed."  This  seems  to  mean  that,  either  from  lack  of 
faithfulness  or  want  of  capacity,  they  injured  their  cause  by  pleading 
it.  But  you  would  scarcely  presume  to  pronounce  such  a  judgment 
on  men  whose  superiority  over  yourself  is  so  marked  and  so  well  known. 
One  other  construction  of  your  words  is  possible.  The  Commissioners 
were  the  auditors,  and  their  minds  were  prepared  to  decide  in  favor  of 
the  fraud  by  the  mere  fact  that  Messrs.  Field  and  Carpenter,  Eepubli- 
can  lawyers,  appeared  in  opposition  to  it.  Did  the  Commissioners 
indulge  a  feeling  so  unworthy  ?  Did  they  prostitute  their  judicial 


366  POLITICAL  ESSAYS  AND  LETTERS. 

functions  to  satisfy  it  ?  Certainly  no  reasonable  man  can  ever  believe 
that,  without  authority  much  better  than  yours.  But  most  probably 
you  had  no  meaning  at  all.  It  is  mere  drivel,  and  only  furnishes  an 
other  proof  that,  when  your  masters  at  Washington  intrusted  you  with 
the  defense  of  the  Great  Fraud,  they  put  the  business  into  most  incom 
petent  hands. 


THE  THIRD  TERM:    REASONS  AGAINST  IT. 

"Resolved,  That  in  the  opinion  of  this  House  the  precedent  estab 
lished  by  Washington  and  other  Presidents  of  the  United  States,  in 
retiring  from  the  presidential  office  after  their  second  term,  has  be 
come,  by  universal  consent,  a  part  of  our  republican  system  of  govern 
ment,  and  that  any  departure  from  this  time-honored  custom  would 
be  unwise,  unpatriotic,  and  fraught  with  peril  to  our  free  institu 
tions.  " 

This  is  a  resolution  passed  by  the  House  of  Representatives  on  the 
15th  day  of  December,  1875.  It  was  offered  by  Mr.  Springer,  of  Illi 
nois,  after  consultation  with  leading  friends  of  the  principle,  and  was 
carried  immediately  and  almost  unanimously,  being  opposed  by  the 
votes  of  only  eighteen  members  out  of  two  hundred  and  fifty-one.  It 
received  the  support  and  approbation  of  all  parties.  Men  who  quar 
reled  bitterly  upon  all  other  political  subjects  were  of  one  heart  and 
one  mind  when  it  came  to  be  a  question  whether  the  custom  estab 
lished  by  Washington  and  other  Presidents,  of  retiring  after  their 
second  term,  ought  to  be  respected  or  could  be  safely  departed  from. 

And  now  here,  to  wit,  in  the  pages  of  this  Review,  comes  Mr. 
Howe,  of  Wisconsin,  and  on  the  part  of  General  Grant,  for  whom  he 
appears,  denounces  the  resolution  aforesaid,  impugns  the  doctrine  em 
bodied  in  it,  and  assails  the  integrity  of  its  supporters  in  the  most 
violent  manner.  I  am  asked,  "  Under  which  king,  Bezonian  ?  "  Do 
I  give  in  my  concurrence  ?  If  not,  what  grounds  of  opposition  can  I 
presume  to  stand  on  ?  Believing  in  the  resolution  of  the  Represent 
atives,  and  dissenting  from  Mr.  Howe's  article,  the  readers  of  the 
Review  shall  have  the  why  and  the  wherefore  :  not  because  my  indi 
vidual  opinions  are  worth  a  rush,  but  because,  on  a  subject  so  impor 
tant,  truth  is  entitled  to  every  man's  defense ;  because  this  faith  is 
shared,  in  our  time,  by  the  most  respectable  citizens  of  all  classes  ;  and 
because  it  is  delivered  to  us  from  a  past  generation,  strongly  stamped 
with  the  approbation  of  the  best  men  that  have  lived  in  all  the  ages. 

A  President  of  the  United  States  may  legally  be  elected  and  re- 
elected  for  an  indefinite  number  of  terms ;  there  is  nothing  in  the 
Constitution  to  forbid  it ;  but  the  two-term  precedent  set  by  Washing- 


POLITICAL  ESSAYS  AND  LETTERS.  367 

ton,  followed  by  his  successors,  consecrated  by  time  and  approved  by 
all  the  public  men  of  the  country,  ripened  into  a  rule  as  efficient  in  its 
operation  as  if  it  had  been  a  part  of  the  organic  law.  A  distinguished 
and  very  able  Senator  of  the  Grant  party,  who  had  carefully  inquired 
into  the  state  of  popular  feeling,  told  me  in  1875  that  the  sentiment 
which  opposed  a  third  term  was  stronger  than  a  constitutional  inter 
dict  ;  the  people  would  more  readily  assent  to  a  breach  of  positive  law 
textually  inserted  into  the  Constitution  than  to  any  disturbance  of  an 
unwritten  rule  which  they  regarded  as  so  sacred. 

Certainly  it  was  adhered  to  by  all  parties,  with  a  fidelity  which 
some  of  them  did  not  show  to  the  Constitution  itself,  down  to  1875, 
when  the  first  attempt  was  made  to  contravene  it  by  putting  up  Gen 
eral  Grant  for  a  third  election.  This  was  everywhere  received  by  the 
rank  and  file  with  mutterings  of  mutiny,  and  the  most  devoted  par 
tisans  responded  with  curses,  which  if  not  loud  were  deep.  The  move 
ment,  as  Mr.  Howe  tells  us,  was  met  by  solemn  warnings  from  the 
newspaper  press,  by  strong  protests  from  political  conventions,  and 
finally  by  the  resolution  quoted  at  the  head  of  this  article,  which  was 
a  rebuke  so  overwhelming  that  the  supporters  of  the  third-term  candi 
date  fled  from  him  in  fear,  deserted  him  utterly,  and  left  him  without 
a  single  vote  in  the  nominating  convention  of  his  own  party. 

Mr.  Howe  has  no  doubt  that  this  resolution  was  the  sole  cause  of 
Grant's  defeat  in  1876.  He  is  equally  certain  that  it  was  all  wrong. 
He  gives  the  Republicans  who  supported  it  no  credit  for  sincere  belief 
in  the  principle  they  professed.  He  says  they  were  not  "  brave  and 
conscientious"  enough  to  "stake  the  post-offices"  on  Grant's  elec 
tion  ;  he  charges  that  they  were  moved  only  by  a  base  and  dishonor 
able  dread  of  losing  the  spoils  when  they  abandoned  their  chief  in  the 
midst  of  his  struggle.  It  is  not  for  me  to  say  whether  this  imputa 
tion  of  cowardice  and  dishonesty  is  or  is  not  a  slander  on  the  Republi 
cans,  but  I  think  I  know  a  good  many  of  the  gentlemen  accused  who 
are  at  least  as  brave  and  conscientious  as  Mr.  Howe  himself.  It  is 
doubtful  if  even  the  contractors  and  office-holders  under  General 
Grant  were  quite  so  godless  a  crew  as  Mr.  Howe  represents  them  to 
be. 

However  that  may  be,  the  present  intent  of  Mr.  Howe  is  to  rally 
the  routed  third-termers,  and  restore  the  courage  of  the  recreants  by 
the  assurance  that  the  jobs  and  offices  are  safe,  after  all.  To  that  end 
he  tells  them  that  their  panic  was  caused  by  a  "spook,"  they  were 
frightened  by  a  "strange  fulmination,"  they  were  "scared  by  a  sense 
less  clamor,"  and  by  "reiterated  vociferations,"  and  the  Springer  res 
olution,  he  says,  was  "a  champion  piece  of  charlatanry  enacted  in 
the  House  of  Representatives."  This  is  loud  calling  to  the  fugitives, 
and  perhaps  it  may  bring  some  of  them  back.  But  it  proves  nothing 
against  the  Springer  resolution,  and  to  destroy  the  effect  of  it  is  the 


368  POLITICAL  ESSA  YS  AND  LETTERS. 

task  which  Mr.  Howe  has  set  himself.  His  ultimate  design  is  to  elect 
General  Grant,  and  no  true  lover  of  American  liberty  can  vote  for 
Grant  with  a  safe  conscience,  if  he  believes  that  a  departure  from  the 
Washington  precedent  is  "fraught  with  peril  to  our  free  institutions." 
For  this  sufficient  reason,  and  with  this  end  in  view,  Mr.  Howe  goes 
seriously  about  the  work  of  blackening  the  character  of  the  Springer 
resolution  and  bringing  it  into  public  infamy,  contempt,  and  hatred. 

He  makes  four  specific  and  distinct  charges  against  the  resolution, 
and  avows  that  the  aim  and  intent  of  his  article  is  to  make  these 
charges  good.  He  "thunders  in  the  index"  and  opens  upon  the  reso 
lution  with  these  appalling  threats  : 

It  is,  therefore,  the  purpose  of  this  article  to  show  that  in  those 
few  lines  quoted  from  the  Journal  of  the  House  of  Eepresentatives 
are  comprised — (1)  a  grave  impeachment  of  the  Federal  Constitution  ; 
(2)  a  gross  libel  upon  its  framers ;  (3)  a  base  counterfeit  of  our  politi 
cal  history  ;  and  (4)  a  wanton  insult  to  our  common  sense.  * 

These  are  grave  accusations.  If  the  resolution  is  guilty  of  all  this, 
it  ought  to  be  not  only  expunged,  but  cut  out  of  the  record  and 
burned  by  the  common  hangman.  It  is  worth  while,  therefore,  to 
see  whether  Mr.  Howe's  arguments  and  proofs  do  accomplish  the  de 
clared  purpose  of  his  article  : 

I.  I  am  not  sure  that  I  know  what  he  means  by  impeachment  of 
the  Constitution.  He  certainly  does  not  mean  the  violation  of  it. 
The  wildest  orator  on  a  Western  stump  would  not  say  that  we  are 
commanded  by  the  Constitution  to  elect  the  same  person  three  times. 
Mr.  Howe  himself  goes  no  further  than  to  say  that  the  Constitution 
" clearly  permits  it."  He  has  some  misty  and  confused  idea  in  his 
head  that  we  dishonor  the  Constitution,  or  fly  in  the  face  of  it,  if  we 
fail  to  do  whatever  it  does  not  forbid.  "  The  fundamental  law,"  he 
says,  "  puts  no  limit  to  the  number  of  terms  for  which  the  people  may 
elect  the  same  man  to  the  presidency,"  and  from  this  proposition  he 
jumps  to  the  conclusion  that  the  Constitution  is  impeached  (whatever 
that  may  mean) '  when  the  representatives  of  the  people  affirm  the 
danger  and  impropriety  of  giving  more  than  two  terms  to  the  same 
person.  A  gentleman  who  has  occupied  the  seat  of  a  Senator  in  Con 
gress  ought  to  know  that  the  Constitution  "clearly  permits"  many 
things  which,  nevertheless,  ought  not  to  be  done.  Without  encounter 
ing  any  prohibition,  we  might  make  the  criminal  code  as  bloody  as 
that  of  Draco  ;  or  keep  a  standing  army  of  half  a  million  of  men  in 
time  of  peace  ;  or  starve  labor  by  taxation  to  stuff  capital  with  boun 
ties.  But  is  it  any  impeachment  of  the  Constitution  to  say  that  such 
measures  would  be  "  unwise,  unpatriotic,  and  fraught  with  peril  to  our 
free  institutions  "  ? 

*  The  parenthetic  numerals  are  mine. — B. 


POLITICAL  ESSAYS  AND  LETTERS.  369 

Mr.  Howe  alleges  loudly,  learnedly,  and  with  great  solemnity,  that 
General  Grant  was  eligible  in  1876,  and  is  now  eligible — that  is  to  say, 
capable  of  being  elected  notwithstanding  his  two  previous  elections. 
To  show  this  he  has  spread  himself  over  many  pages  of  dreary  and 
commonplace  writing.  His  success  is  perfect,  if  success  it  can  be 
called  to  prove  what  no  human  being  in  the  world  ever  thought  of  de 
nying  ;  but  from  this  conceded  truth,  so  elaborately  set  forth,  he 
draws  the  absurd  inference  that  we  can  not  refuse  to  elect  him  with 
out  an  impeachment  of  the  Constitution.  This  kind  of  logic,  if  we 
adopt  it,  will  lead  to  curious  consequences.  If  one  citizen  must  be 
elected  because  he  is  eligible,  what  are  we  to  do  with  the  millions  of 
others  who  are  equally  eligible  ?  "We  can  not  elect  every  male  native 
over  thirty-five  years  of  age ;  but,  if  we  do  not  make  them  all  Presi 
dents  at  once,  we  impeach  the  Constitution,  which  provides  that  any 
one  of  them  may  be  chosen.  The  Constitution  "  clearly  permits  "  us  to 
elect  a  third-term  candidate  or  a  new  man  ;  but,  if  permission  implies 
obligation,  we  violate  duty  by  rejecting  one  as  much  as  the  other. 
The  fifteenth  amendment  makes  an  African  eligible  ;  therefore  we 
impeach  the  amendment  every  time  we  elect  a  white  man,  and  we 
impeach  the  original  instrument  if  we  choose  a  negro  ;  "  either  way 
we're  sped." 

The  logic  of  Mr.  Howe  will  apply  to  State  officers  and  to  subor 
dinate  officers  of  the  United  States  with  as  much  force  as  to  the  Presi 
dent.  Mr.  Robinson  was  Governor  of  New  York,  a  candidate  for  re 
election,  and  clearly  eligible ;  his  defeat  was,  in  the  opinion  of  many 
good  men,  most  improper,  unwise,  and  unpatriotic,  but  neither  his 
friends  nor  his  enemies  thought  the  Constitution  impeached  by  the 
election  of  his  competitor.  Mr.  Howe  was  a  Senator,  and  when  his 
term  expired  he  was  anxious  above  all  things  to  be  re-elected,  but  for 
some  reason,  of  which  I  know  nothing,  he  was  rather  badly  beaten. 
He  himself  may  have  believed  that  the  Legislature  of  Wisconsin  im 
peached  the  Constitution  when  it  chose  Mr.  Carpenter  in  his  place, 
but  it  is  very  certain  that  nobody  else  did. 

The  friends  of  a  third  term  may  complain  that  I  am  taking  an 
unfair  advantage  of  Mr.  Howe's  loose  language.  Perhaps  his  meaning 
may  be  more  precisely  expressed  thus  :  The  Constitution  permits  the 
same  man  to  be  elected  three  times  or  of  tener ;  the  Springer  resolu 
tion  declares  it  unwise,  unpatriotic,  and  dangerous  to  elect  any  one 
more  than  twice ;  and  this  is  an  impeachment  of  the  Constitution, 
because,  in  effect,  it  affirms  that  the  Constitution  "sanctions  an  act 
malevolent  in  its  tendencies."  But,  after  all  the  help  we  can  give  him 
in  stating  and  restating  his  view,  it  remains  as  preposterous  as  ever. 
The  Constitution  leaves  to  the  people  an  unlimited  discretion  in  the 
choice  of  their  Chief  Magistrate.  To  any  man's  pretensions  they  have 
a  legal  right  to  say  no  as  well  as  yes.  They  and  their  representatives 

24 


808  POLITICAL  ESSAYS  AND  LETTERS. 

task  which  Mr,  Howe  has  Pet  himself.  Ilia  ultimate  design  is  to  elect 
General  Grant,  and  no  true  lover  of  American  liberty  can  vote  for 
Grant  with  a  safe  conscience,  if  he  believes  that  a  departure  from  the 
Washington  precedent  is  "fraught  with  peril  to  onr  free  institutions." 
For  this  sufficient  reason,  and  with  this  end  in  view,  Mr.  Howe  goes 
seriously  about  the  work  of  blackening  the  character  of  the  Springer 
resolution  and  bringing  it  into  public  infamy,  contempt,  and  hatred. 

lie  makes  four  specific  and  distinct  charges  against  the  resolution, 
and  avows  that  the  aim  and  intent  of  his  article  is  to  make  these 
charges  good.  He  "  thunders  in  the  index"  and  opens  upon  the  reso 
lution  with  these  appalling  threats  : 

It  is,  therefore,  the  purpose  of  this  article  to  show  that  in  those 
few  linos  quoted  from  the  Journal  of  the  House  of  Representatives 
are  comprised — (t)  a  grave  impeachment  of  the  Federal  Constitution  ; 
(3)  a  gross  libel  upon  its  framers;  (3)  a  base  counterfeit  of  our  politi 
cal  history  ;  and  (4)  a  wanton  insult  to  our  common  sense.* 

These  are  grave  accusations.  If  the  resolution  is  guilty  of  all  this, 
it  ought  to  bo  not  only  expunged,  but  cut  out  of  the  record  and 
burned  by  the  common  hangman.  It  is  worth  while,  therefore,  to 
see  whether  Mr.  Howe's  arguments  and  proofs  do  accomplish  the  de 
clared  purpose  of  his  article  : 

I.  I  am  not  sure  that  I  know  what  he  means  by  impeachment  of 
th*  Constitution,  He  certainly  does  not  mean  the  violation  of  it. 
The  wildest  orator  on  a  Western  stump  would  not  say  that  we  are 
commanded  by  the  Constitution  to  elect  the  same  person  three  times. 
Mr.  Howe  himself  goes  no  further  than  to  say  that  the  Constitution 
" clearly  permits  it."  He  has  some  misty  and  confused  idea  in  his 
head  that  we  dishonor  the  Constitution,  or  fly  in  the  face  of  it,  if  wo 
fail  to  do  whatever  it  docs  not  forbid.  "The  fundamental  law,"  he 
says.  '*  puts  no  limit  to  the  number  of  terms  for  which  the  people  may 
elect  the  same  man  to  the  presidency."  and  from  this  proposition  ho 
jumps  to  the  conclusion  that  the  Constitution  is  impeached  (whatever 
that  may  moan)' when  the  representatives  of  the  people  affirm  the 
danger  and  impropriety  of  giving  more  than  two  terms  to  the  same 
person.  A  gentleman  who  has  occupied  the  seat  of  a  Senator  in  Con- 
press  ought  to  know  that  the  Constitution  "  clearly  permits  "many 
things  which,  nevertheless,  ought  not  to  be  done.  Without  encounter 
ing  any  prohibition,  wo  might  make  the  criminal  code  as  bloody  as 
that  of  Draco  ;  or  keep  a  standing  army  of  half  a  million  of  men  in 
time  of  peaeo  ;  or  starve  labor  by  taxation  to  stuff  capital  with  boun 
ties.  But  is  it  any  impeachment  of  the  Constitution  to  say  that  such 
measures  would  bo  **  unwise,  unpatriotic,  aud  fraught  with  peril  to  our 
free  institutions  "  ? 

*  The  parenthetic  numerals  are  mine. — B. 


.-::.:  -  :•  :    -'     :  .:.-:." 

*aad  wtt  great  M<ikaDDai%,  lisa* 


vae  -cigi     ai 

«f  tedoisg  dWtoi  oriMlrtMd&ng  Unfa  ttw&  JBTOWH  ^footawD*. 
dhow  tiki*  foe  lav  ipuftiMft  flnonwefllf  nwwr  aoaarr  fagpc  <«f  4rrearr  an€ 
writing.     Hit  tmt-ww  m  perfect,  if  «ii«r*ss  iiit  <eaai  He 
v*/  jjer*^  w&at  sro  fcraBtt^ 


msxt  nefin«e  ^^  -«ieat  imn 

<<&  tiki*  CouBDiitninattiL    Tte  MndL  <«€  H^gnfi,,  iff  nw 
it,  wli  lead  to  ^nriwafi  ^Msae^iRiittefi.     iK  <«tte  (tomoteaa  ^K«f  Hue 
wtot  :aine  we  te  *s>  wmfti  tt&$  moiEfifaa  «f 


if  v^  , 
we  iitnif«a^  fwwiife*  it&ait 

i&Mnfc^^  tat,  af  fen 

.«e  itite 


tibe  .ameaDijeaHt  «^eij  ttzane  we  *wt  a  -roK  ntasL 
if  we  da«wwe  a  nne^jrw  ;  ** 


United  Jwtatw  wMi g»  mvfM  Iwrae  AC  fw 
Me.  Eofoiikean  wae  {jtawnwr  <srf  Jfew  Y<wfc,  a  ««udaiteiie  £«r  me- 

find  dtearlj  dfifiMe ;  Ms  defeat  WTOE,  am  tthe  «fiimiii 
suem,  ittoat  itBB^wper..  tHrwne,  ant  mqpastirwm^  tat 

flMV  MmiflHaec  itAwsna^Soit  itfce  CwuMiiitaMi  iiaarp«ae&«ad  toy  itibe 
eileetaoaa  «f  Me  «QnDp€it&iboc.  MK,  Howe  wac  ,-a  ^eaBHbor.,  ant  wiaem  Me 
term  expired  9ae  wac  .amwim  afewRe  affl  ttMaa-^e  to  be  iB-eitaeftad,,  tat  for 
Ee&attDu  «lf  wkicfe  I  fca wr  iwrtibiia^  foe  wa£  zatiner 

tibat  rtSfte  L^^athnne^^ 

cflmK  Me.  Carpmtier  ibu  Mt 

The  Marffifi€  A  titiMtoMflweMqBftaiaL  OH*;  I  am  teidagfli 

.':".•• •  •-  ----.  -•  ' 


• 

.  -      -     .    .    . 
MBS.   MBMJgnWHBB   IV  S3BK» 

:-..•    ,   :-.      -    -.,.-_        -•      ::    :- 

Bttfew^Mi  it  ijglfB  iiTBiriffn  *  B^  attar  alltel^  we  aagire  bat 

in  «iatai^  «4  jmrthrfiag  IBSTOW^  it  ggaaiwag  nmmluiMf  ami  «RBK. 

.     -      .:-.:;.:-       -.-..---••::•••     :      -    ':.:-. 
'  '...  :      •.  .  .   .  .  •        -       •-• 

mye*.    TbcyanA  fbesr 


370  POLITICAL  ESSAYS  AND  LETTERS. 

may  certainly  deliberate  and  determine  how  that  discretion  shall  be 
exercised,  and  to  put  their  decision  into  the  form  of  a  general  rule  or 
political  principle  which  will  exclude  classes  of  men  from  their  favor 
as  well  as  particular  individuals.  Thus  we  might  resolve  against  the 
propriety  of  electing  a  drunkard  or  a  gambler,  though  there  is  nothing 
in  the  Constitution  which  makes  a  sot  or  a  blackleg  ineligible.  The 
Constitution  "clearly  permits "  one  who  is  or  has  been  an  officer  of  the 
army  to  be  made  President ;  but,  when  General  Jackson  was  a  candi 
date,  all  the  anti-Democrats  of  that  day  resolved  and  re-resolved  that 
the  election  of  a  military  chieftain  would  be  not  only  unwise,  unpatri 
otic,  and  dangerous,  but  a  calamity  to  the  country  worse  than  war, 
pestilence,  and  famine  combined.  This  was  false,  no  doubt,  but  it 
was  not  suspected  then  or  since  of  being  an  impeachment  of  the  Con 
stitution.  All,  or  nearly  all,  citizens  of  the  South  who  fought  for 
their  "lost  cause"  are  eligible  to  the  presidency,  but  Mr.  Howe  would 
concur  without  hesitation  in  a  resolution  declaring  the  election  of  a 
Confederate  brigadier  "unwise,  unpatriotic,  and  fraught  with  peril 
to  our  free  institutions,"  and  it  would  never  strike  him  that  he  was 
thereby  impeaching  the  Constitution  "which  sanctions  an  act  so  ma 
levolent  in  its  tendencies." 

This  allegation  that  the  Constitution  has  been  impeached  is  so  weak 
and  so  shallow  that  it  would  not  deserve  refutation  if  it  were  not  the 
main  objection  of  the  leading  third- termer  to  a  wise  and  salutary  rule, 
established  by  the  fathers  of  the  republic,  and  concurred  in  by  all  par 
ties  of  the  present  day ;  for  this  two-term  rule  is  not  only  recom 
mended  by  its  intrinsic  soundness,  it  is  orthodox  according  to  St. 
Augustine's  definition  of  orthodoxy  :  "  Quod  ulique,  quod  semper, 
quod  ab  omnibus  creditum  est."  That  which  is  believed  to  be  right 
everywhere,  always,  and  by  all  persons,  must  be  defended  by  the  faith 
ful  even  against  the  puniest  assaults  of  interested  and  ill-natured 
schismatics. 

II.  It  is  asserted,  in  the  second  place,  that  the  resolution  of  Con 
gress  is  a  gross  libel  upon  theframers  of  the  Constitution  ;  that  is  to 
say,  it  slanders  the  character  of  the  men  who  made  the  Constitution, 
and  maliciously  injures  or  attempts  to  injure  their  good  repute. 

Who  are  the  "framers"  wronged  by  this  "gross  libel"  ?  General 
Washington,  "  the  foremost  man  of  all  this  world,"  presided  at  their 
deliberations,  and,  next  after  Washington,  the  most  conspicuous  mem 
ber  of  the  body  was  Madison,  who  took  so  large  a  part  in  framing  the 
Constitution  that  he  has  ever  since  been  called  the  father  of  it.  These 
two  illustrious  men  afterward  became  President  under  the  Constitu 
tion  which  was  the  work  of  their  hands.  Although  they  were  not 
required  to  lay  down  their  charge  at  any  specified  period  of  their  ser 
vice,  yet  both  of  them  did  voluntarily  retire  after  serving  two  terms. 
During  all  their  subsequent  lives  they  were  followed  by  the  approving 


POLITICAL  ESSA  YS  AND  LETTERS.  371 

benedictions  of  their  countrymen ;  and  their  graves  are  hallowed 
ground.  They  rested  from  their  labors,  and  their  righteous  works  did 
follow  them,  time-honored,  through  later  generations. 

When  the  Romans  desired  to  honor  a  deceased  benefactor,  they 
went  up  to  the  Capitol  and  publicly  crowned  his  statue  with  laurels ; 
the  Representatives  of  the  American  people,  in  December,  1875,  did 
for  Washington  and  Madison  what  was  more  than  equivalent — they 
solemnly  and  with  one  voice  commended  their  example  as  worthy 
of  all  imitation.  This  commendation,  expressed  in  language  imply 
ing  love  and  admiration  as  perfect  as  could  be  on  this  side  of  idolatry, 
is  what  Mr.  Howe  calls  a  gross  libel  on  them  and  all  the  framers  of  the 
Constitution  !  Can  the  absurdity  of  mortal  man  go  further  ? 

III.  Besides  this,  the  resolution,  according  to  Mr.  Howe,  is  a  base 
counterfeit  of  our  political  history.     Here  he  takes  me  entirely  out  of 
my  depth.     I  can  not  form  the  remotest  conjecture  of  what  he  would 
be  at.     I  have  fairly  tried  to  comprehend  him,  but  I  give  it  up.    Con 
gress  expressed  its  belief  in  a  certain  political  principle  or  rule  of 
action,  and  Mr.  Howe  calls  the  expression  a  counterfeit  of  history  ! 
When  an  ex-Senator  undertakes  to  be  a  public  teacher,  his  utterances 
ought  to  have  some  kind  of  meaning  in  them  ;  but  this  appears  to  be 
mere  "sound  and  fury  signifying  nothing." 

IV.  He  has  another  objection  to  the  resolution  :  he  says  it  is  an 
insult  to  our  common  sense.     This  is  the  ordinary  style  of  a  disputant 
who  knows  he  is  angry  but  does  not  know  why ;  it  is  the  usual  explo 
sion  of  rage  without  reason  ;  it  was  Mrs.  Moriarty's  objurgation  upon 
O'Connell  when  he  told  her  the  fish  was  not  sound  ;  it  is  the  common 
est  kind  of  scolding,  for  which  there  is  no  answer  and  no  punishment 
except  the  ducking-stool. 

It  was  the  express  purpose  of  Mr.  Howe's  article  to  show  these 
four  allegations  against  the  Springer  resolution  to  be  good  and  true. 
He  has  ignominiously  failed  at  all  points,  and  therefore  the  article 
itself  is  such  a  manifest  abortion  that  it  might  be  allowed  to  pass  with 
out  further  notice.  But  he  has  other  arguments  for  a  third  term. 
They  are  not  true  or  powerful  or  even  plausible,  but  they  are  curious 
enough  to  invite  attention  and,  perhaps,  to  reward  examination. 

From  the  conceded  fact  that  the  Constitution  does  not  forbid  re 
election,  he  reasons  that  in  practice  re-elections  should  go  on  without 
limit ;  and  he  thinks  he  strengthens  this  argument  if  he  shows  that 
re-eligibility  was  a  part  of  the  plan  very  much  favored  by  the  men 
who  framed  and  adopted  it.  Therefore  he  says  :  "No  one  idea  was 
so  prominent  or  so  universal  in  the  Constitutional  Convention  as  this  : 
Presidents  must  be  re-eligible."  He  emphasizes  this  in  screaming 
italics,  and  follows  it  immediately  by  citing  at  great  length  certain 
proceedings  of  the  Convention — votes,  speeches,  reports,  and  proposi 
tions — which,  instead  of  supporting,  flatly  contradict  the  assertion 


374  POLITICAL  ESSAYS  AND  LETTERS. 

Popular  veneration  for  the  men  who  built  up  our  institutions  is 
the  strongest  support  for  the  institutions  themselves.  It  is  not  only 
a  great  good  intrinsically,  but  also  the  motive  principle  to  other 
virtues  which  are  indispensable  in  a  government  like  ours.  Any 
thing,  therefore,  which  unjustly  detracts  from  their  reputation  is  a 
grievous  public  injury.  This  applies  most  especially  to  Washing 
ton,  who  is  acknowledged,  not  only  by  us,  but  by  every  nation, 
tongue,  and  kindred  under  heaven,  to  have  been  incomparably  the 
greatest  man  that  any  country  ever  produced.  An  indecent  criticism 
upon  him  shocks  and  shames  us  like  blasphemy.  Nevertheless,  we 
would  not  abridge  the  liberty  of  speech.  A  raging  third-termer  has  as 
good  a  right  to  sneer  at  the  Father  of  his  Country  as  an  independent 
Hottentot  has  to  beat  his  mother.  But  Mr.  Howe's  censure  of  the 
Washington  precedent  is  based  upon  a  false  morality.  It  supposes 
that  the  virtuous  act  of  a  public  man  is  not  to  be  imitated  if  the  doer 
took  pleasure  in  it ;  it  may  be  treated  with  total  contempt  by  any 
successor  whose  personal  inclinations  are  averse  to  it.  This  leaves  no 
distinction  between  right  and  wrong,  except  what  is  made  by  the  pas 
sions  and  interests  of  each  individual.  Oincinnatus  assumed  the  dic 
tatorship  of  Rome  at  the  urgent  call  of  his  country,  drove  away  the 
Gauls  and  relieved  the  city  from  its  imminent  danger  as  rapidly  as 
possible  ;  then,  laying  aside  the  lictors  and  the  fasces,  and  the  curule- 
car,  and  the  purple  robe,  he  hastened  immediately  home  to  his  plow 
ing,  which  he  had  reluctantly  left  unfinished.  By  the  influence  of 
this  example  the  Romans  were  saved  from  slavery  a  score  of  times,  and 
their  liberties  were  finally  lost  by  disregarding  it ;  but,  according  to 
Mr.  Howe's  notion,  it  was  not  binding  on  any  subsequent  dictator,  un 
less  he  was,  like  Cincinnatus,  particularly  fond  of  plowing.  Very 
probably  the  sycophants  of  Marius  and  Sylla  and  Caesar  presented  to 
them  exactly  this  view  of  the  subject.  General  Grant  may  accept 
it  at  the  suggestion  of  Mr.  Howe,  but  the  American  people  will 
hardly  believe  that  a  point  has  been  made  against  Washington 
strong  enough  to  do  the  cause  of  third  term  much  good. 

Mr.  Howe  appears  to  be  under  the  erroneous  impression  that 
Mr.  Adams  the  elder  was  twice  elected  ;  but,  inasmuch  as  nobody 
asked  him  to  be  a  candidate  for  a  third  term,  his  example  "  furnishes 
no  more  sanction  to  the  Springer  resolution  than  does  the  example  of 
Mr.  Washington."  Mr.  Howe's  habitual  want  of  precision  may  some 
times  make  him  seem  to  be  ignorant  when  he  is  not ;  but,  if  he  had 
known  that  Mr.  Adams  was  defeated  when  a  candidate  for  a  second 
term,  and,  therefore,  could  not  possibly  be  cited  as  an  example  for  or 
against  a  third  term,  he  would  certainly  have  spared  us  the  irrelevant 
and  pointless  assertion  that  the  examples  of  Adams  and  Washington 
are  alike  worthless  as  a  sanction  to  the  doctrine  which  favors  retire 
ment  after  a  second  term. 


POLITICAL  ESSA  YS  AND  LETTERS.  375 

Jefferson  also  comes  under  review.  His  precedent,  whether  good 
or  evil,  is  at  least  "  to  the  purpose."  In  letters  addressed  to  the  Leg 
islatures  of  Vermont,  New  Jersey,  and  Pennsylvania,  dated  on  the 
10th  of  December,  1807,  and  printed  in  the  "Aurora"  at  Philadel 
phia  on  the  19th  of  the  same  month,  he  solemnly  and  publicly  an 
nounced  to  the  country  that  he  would  not  disregard  the  precedent  of 
his  illustrious  predecessor  by  accepting  another  election.  His  reasons 
are  brief,  simple,  and  clear,  like  all  the  productions  of  that  master- 
hand,  and  expressed  in  language  so  transparently  truthful  and  digni 
fied  that  no  man  of  rightly  constituted  mind  can  read  the  paper 
without  being  stirred  by  the  strongest  emotions  of  respect  and  admira 
tion  for  its  author.  It  compresses  into  a  few  sentences  all  that  needs 
to  be  said  in  favor  of  the  two-term  limitation,  and  is  at  the  same  time 
a  perfect  answer  to  all  objections.  Mr.  Howe  is  fair  enough  to  take  a 
passage  from  it  and  incorporate  it  with  his  article  ;  it  shines  there  like  a 
piece  of  solid  gold  set  in  a  shapeless  mass  of  lead.  Confined  as  I  am 
in  time  and  space,  and  unnecessary  as  it  may  seem,  I  can  not  resist 
the  temptation  to  adorn  my  own  page  by  quoting  entire  the  letter  of 
which  Mr.  Howe  has  given  a  part.  In  these  times,  when  the  subject 
is  up  for  renewed  consideration,  this  letter  should  be  read  again  and 
again;  every  citizen  ought  to  have  it  by  heart  and  teach  it  to  his 
children,  write  it  on  the  lintels  of  his  door,  bind  it  as  a  frontlet  be 
tween  his  eyes,  and  make  it  the  subject  of  his  meditation  day  and 
night  : 

December  10,  1807. 

To  the  Legislature  of  Vermont. 

I  received  in  due  season  the  address  of  the  Legislature  of  Vermont, 
bearing  date  the  5th  of  November,  1806,  in  which,  with  their  appro 
bation  of  the  general  course  of  my  Administration,  they  were  so  good 
as  to  express  their  desire  that  I  would  consent  to  be  proposed  again  to 
the  public  voice  on  the  expiration  of  my  present  term  of  office.  En 
tertaining  as  I  do  for  the  Legislature  of  Vermont  those  sentiments  of 
high  respect  which  would  have  prompted  an  immediate  answer,  I  was 
certain,  nevertheless,  they  would  approve  a  delay  which  had  for  its 
object  to  avoid  a  premature  agitation  of  the  public  mind  on  a  subject 
so  interesting  as  the  election  of  a  Chief  Magistrate. 

That  I  should  lay  down  my  charge  at  a  proper  period  is  as  much  a 
duty  as  to  have  borne  it  faithfully.  If  some  termination  to  the  serv 
ices  of  the  Chief  Magistrate  be  not  fixed  by  the  Constitution,  or  sup- 
Elied  by  practice,  his  office,  nominally  for  years,  will  in  fact  become 
)r  life  ;  and  history  shows  how  easily  that  degenerates  into  an  inher 
itance.  Believing  that  a  representative  government  responsible  at 
short  periods  of  election  is  that  which  produces  the  greatest  sum  of 
happiness  to  mankind,  I  feel  it  a  duty  to  do  no  act  which  shall  essen 
tially  impair  that  principle  ;  and  I  should  unwillingly  be  ,the  person 
who,  disregarding  the  sound  precedent  set  by  an  illustrious  predecessor, 
should  furnish  the  first  example  of  prolongation  beyond  the  second 
term  of  office. 


376  POLITICAL  ESSAYS  AND  LETTERS. 

Truth  also  requires  me  to  add  that  I  am  sensible  of  that  decline 
which  advancing  years  bring  on,  and,  feeling  their  physical,  I  ought  not 
to  doubt  their  mental  effect.  Happy  if  I  am  the  first  to  perceive  and 
to  obey  this  admonition  of  nature,  and  to  solicit  a  retreat  from  cares 
too  great  for  the  wearied  faculties  of  age. 

For  the  approbation  which  the  Legislature  of  Vermont  has  been 
pleased  to  express  of  the  principles  and  measures  pursued  in  the  man 
agement  of  their  affairs,  I  am  sincerely  thankful ;  and  should  I  be  so 
fortunate  as  to  carry  into  retirement  the  equal  approbation  and  good 
will  of  my  fellow  citizens  generally,  it  will  be  the  comfort  of  my  fu 
ture  days,  and  will  close  a  service  of  forty  years  with  the  only  reward 
it  ever  wished. 

Two  days  after  the  publication  of  the  foregoing  letter,  to  wit,  on 
the  21st  of  December,  1807,  he  wrote  to  the  Appomattox  Association 
(Baptist)  thus  : 

Believing  that  a  definite  period  of  retiring  from  this  station  will 
tend  materially  to  secure  our  elective  form  of  government,  and  sensi 
ble,  too,  of  that  decline  which  advancing  years  bring  on,  I  have  felt 
it  a  duty  to  withdraw  at  the  close  of  my  present  term  of  office  ;  and 
to  strengthen  by  practice  a  principle  which  I  deem  salutary.  That 
others  may  be  found  whose  talents  and  integrity  render  them  proper 
deposits  of  the  public  liberty  and  interests,  and  who  have  made  them 
selves  known  by  their  eminent  services,  we  can  all  affirm  of  our 
personal  knowledge. 

February  3,  1808,  he  told  the  citizens  of  Philadelphia,  in  town- 
meeting  assembled  :  "  Your  approbation  of  the  motives  for  my  retire 
ment  from  the  station  so  long  confided  to  me  is  confirmation  of  their 
correctness.  In  no  office  can  rotation  be  more  expedient ;  and  none 
less  admits  the  indulgence  of  age." 

On  the  16th  of  the  same  month  he  said  to  the  citizens  of  Wilming 
ton,  Delaware  :  "It  is  a  consolation  to  know  that  the  motives  for  my 
retirement  are  approved  ;  and,  although  I  withdraw  from  public  func 
tions,  I  shall  continue  an  anxious  spectator  of  passing  events,  and  offer 
to  heaven  my  constant  prayers  for  the  preservation  of  our  republic, 
and  especially  of  those  its  best  principles  which  secure  to  all  its  citi 
zens  a  perfect  equality  of  rights." 

Similar  expressions  are  scattered  all  through  his  correspondence  as 
long  as  he  remained  in  office,  and  after  he  retired  to  Monticello  he 
continued  to  repeat  them.  His  conviction  deepened,  as  the  years 
rolled  on,  that  the  principle  of  two  terms  was  the  only  safe  one,  and 
he  constantly  expressed  his  gratitude  for  the  universal  approval  of  his 
conduct  in  adopting  it. 

How  is  this  met  by  the  late  Senator  from  Wisconsin  ?  Mr.  Jeffer 
son's  reasons  for  retiring  are  opposed  by  objections  none  of  which  rises 
to  the  dignity  of  a  quibble.  The  best  specimen  of  hypercriticism  that 
can  be  selected  from  among  them  is  embodied  in  the  charge  that  Mr. 


POLITICAL  ESSAYS  AND  LETTERS.  377 

Jefferson's  declination  deprived  the  people  of  the  right  to  choose  whom 
they  would  for  President.  The  very  words  of  the  article  are  these  : 
"  The  people  had  not  free  choice,  but  restricted  choice,  and  their  free 
dom  was  impaired  by  the  act  of  Mr.  Jefferson."  If  this  oracular  judg 
ment  be  correct,  we  must  take  it  hereafter  as  settled  law  that  whoso 
ever  declines  being  a  candidate  for  the  presidency  commits  a  crime 
against  the  freedom  of  elections. 

Nevertheless,  Mr.  Howe  is  constrained  to  acknowledge  that  Mr. 
Jefferson's  "reasons  are  satisfactory."  Still,  he  is  not  satisfied.  Hav 
ing  demolished  General  Washington,  he  does  not  think  it  well  to  let 
Mr.  Jefferson  stand.  Therefore  he  sets  about  the  serious  work  of  mak 
ing  Jefferson  altogether  infamous.  He  avers  (in  his  own  loose  way, 
of  course,  but  still  intelligibly  enough)  that  Mr.  Jefferson  was  an  im 
postor,  utterly  faithless  and  insincere  through  all  this  business  ;  that, 
so  far  from  wishing  to  retire,  according  to  the  precedent  he  professed 
to  believe  in,  he  was  actually  a  busy  candidate  for  a  third  term ;  that 
he  engaged  for  thirteen  months  in  an  active  canvass  to  get  himself 
elected  ;  that  there  was  a  Jefferson  boom  in  which  Virginia,  his  own 
State,  obstinately  refused  to  join  ;  that  he  gave  up  the  chase  only 
when  he  found  himself  beaten  by  Madison,  and  then  he  falsely  pre 
tended  that  he  did  not  want  a  third  term  ;  that  his  tardy  declination 
was  merely  an  attempt  to  frame  his  disappointment  into  a  law  which 
should  prevent  any  of  his  successors  from  serving  longer  than  he  did. 
From  these  premises,  if  they  were  true,  the  conclusion  would  be  natu 
ral  and  just  that  a  precedent  made  or  a  practice  established  by  Jeffer 
son  deserves  only  the  disdain  of  honest  people. 

But  every  well-informed  man  in  the  country,  except  Mr.  Howe, 
knows  this  whole  accusation  to  be  false  in  every  point  and  circum 
stance.  Mr.  Jefferson  never  sought  a  third  election,  or  engaged  in 
any  canvass  with  that  object,  or  expressed  by  act  or  word  any  de 
sire  to  be  chosen  again.  On  the  contrary,  Mr.  Madison,  then  his 
Secretary  of  State,  and  always  his  devoted  friend,  was  a  candidate  with 
his  fullest  approbation,  and  received  from  him  all  the  support  which 
he  could  becomingly  give.  The  charge  now  made,  that  he  was  un 
faithful  to  his  friend,  his  country,  and  his  own  expressed  convictions 
of  public  duty,  is  unsupported  by  a  single  spark  of  evidence.  Mr. 
Howe's  belief  in  it  pretends  to  rest  on  nothing  except  the  naked  and 
solitary  fact  that  Mr.  Jefferson  published  his  declination,  and  gave  the 
reasons  for  it,  only  a  year  before  the  election  at  which  his  successor 
was  to  be  chosen,  although  one  of  the  addresses  on  the  subject  (that 
from  the  Legislature  of  Vermont)  was  dated  a  year  previous.  This 
has  not  the  slightest  tendency  to  prove  it,  or  even  to  suggest  a  sus 
picion  of  it,  in  the  mind  of  any  fair  man  who  considers  how  many  and 
how  proper  might  be  the  reasons  for  delicate  silence  about  everything 
concerning  the  presidential  election  of  1808  until  the  State  elections 


378  POLITICAL  ESSAYS  AND  LETTERS. 

of  1807  were  overpassed.  But  the  charge  becomes  a  scandal  and  a 
shame  when  we  look  at  Mr.  Jefferson's  own  explanation  of  his  delay, 
as  given  in  that  part  of  the  Vermont  letter  which  Mr.  Howe  has  not 
published.  It  is  worse  still — it  is  an  outrage  upon  truth — when  it  is 
seen  to  be  inconsistent  with  every  material  fact  which  the  history  of 
the  time  discloses. 

This  is  a  fresh  calumny  upon  Jefferson — the  latest  of  many  thou 
sands.  I  do  not  impugn  the  personal  veracity  of  Mr.  Howe  when  I 
say  that  his  party,  at  all  times  and  under  all  of  its  many  names,  has 
taken  a  fierce  delight  in  defaming  the  great  Apostle  of  Democracy. 
It  has  not  forgiven,  and  it  will  never  forgive  him,  for  maintaining  the 
rights  of  the  States  and  the  liberties  of  the  people,  while  he  preserved 
the  powers  of  the  General  Government  in  their  whole  constitutional 
vigor.  It  seems  a  useless  labor  to  vindicate  him  ;  for  the  enemies  of 
the  free  system  which  he  did  so  much  to  sustain  are  continually  re 
viving  old  slanders  or  fabricating  new  ones.  The  spider,  whose  web 
is  broken  by  the  broom,  invariably  reconstructs  it  or  spins  another 
from  his  bowels  : 

"  Destroy  his  fib  or  sophistry — in  vain ; 
The  creature's  at  its  dirty  work  again." 

But  Madison  also  adopted  the  principle  of  his  two  predecessors, 
and  retired  at  the  end  of  his  second  term.  Can  nothing  be  urged 
against  the  Father  of  the  Constitution  to  depreciate  his  authority  or 
make  his  example  worthless  ?  Was  not  he  also  unpatriotic  and  selfish 
ly  fond  of  his  farm  ?  This  could  be  easily  said,  and  is  not  harder 
to  believe  of  him  than  of  Washington.  The  charge  might  also  be 
made  that  he  was  an  actual  candidate  for  a  third  term,  declining  only 
upon  the  failure  of  a  Madison  boom ;  and  history  would  not  contra 
dict  it  more  emphatically  than  it  contradicts  the  story  of  Jefferson's 
boom.  But  not  a  word  have  the  third- termers  to  say  about  him  in 
the  way  of  detraction,  except  that  he  is  libeled  by  the  praise  of  Con 
gress.  Except  for  that,  we  are  graciously  permitted  to  take  his  pre 
cedent  and  follow  it  with  respect  undiminished. 

And  there  was  Monroe,  apparently  " so  clear  in  his  great  office" 
that  rivalry  itself  shrunk  from  his  presence,  and  he  was  elected  a  sec 
ond  time  without  effort,  without  opposition,  without  one  vote  against 
him.  Is  it  nothing  to  the  purpose  that  he  acknowledged  the  value  of 
the  Washington  precedent  ?  Concede  that  he,  the  most  popular  of 
all  Presidents,  except  the  first  one,  could  not  have  got  a  third  term  if 
he  had  asked  for  it,  then  his  retirement  proves  not  only  that  the  two- 
term  practice  was  right  in  his  individual  opinion,  but  that  the  general 
judgment  of  the  nation  was  in  its  favor.  It  is  true,  in  point  of  fact, 
that  at  that  time,  and  for  long  before,  the  precedent  set  by  Washing 
ton  "had  become  by  universal  consent  a  part  of  our  republican  system 


POLITICAL  ESSAYS  AND  LETTERS.  379 

of  government,"  and  the  whole  people,  much  as  they  loved  Mr.  Mon 
roe,  would  have  frowned  him  out  of  countenance  if  he  had  attempted 
to  resist  it.  Still,  it  is  odd  that  the  abuse  by  the  Federalists  of  Mr. 
Monroe,  or  even  the  vituperation  of  Burr,  should  not  have  been  fished 
up  and  reproduced  to  show  that  his  example  is  as  worthless  as  that  of 
the  other  Presidents.  Perhaps  Mr.  Howe,  as  a  matter  of  literary  taste, 
thinks  it  proper  to  deal  only  in  original  slanders. 

General  Jackson  does  not  get  off  so  easily.  We  are  told  that 
"  there  is  ground  for  believing  that  if  Mr.  Van  Buren  had  not  secured 
the  succession  to  General  Jackson  the  latter  would  have  been  retained 
for  another  term."  This  is  like  the  account  we  have  of  Jefferson's 
boom.  If  there  was  any  practice  of  Jackson's  great  predecessors  in 
which  he  acquiesced  with  more  deference  than  another,  it  was  their 
voluntary  retirement  after  a  proper  period  of  service.  He  was  wholly 
opposed  to  the  indefinite  continuance  of  power  in  the  same  hand,  and 
he  expressed  his  opinions  on  that,  as  on  other  subjects,  with  an  em 
phasis  which  left  no  chance  for  misapprehension.  The  ground  for 
believing  that  "in  a  certain  contingency  he  would  have  been  retained 
another  term  "  is  not  anything  he  ever  did  or  forbore  to  do — nothing 
that  he  ever  wrote  or  spoke — nothing  that  ever  was  authorized  by  him 
or  by  the  party  which  supported  him,  or  by  any  representative  of 
either.  Mr.  Howe  has  found  somewhere  an  old  newspaper,  of  date 
not  given,  but  called  the  "Herald,"  and  printed  at  Philadelphia,  no 
one  knows  by  whom,  which  was  so  obscure  while  it  lasted,  and  ceased 
to  exist  so  long  ago,  that  nobody  living  recollects  anything  about  it — 
and  this  paper  (a  Democratic  paper,  if  Mr.  Howe  is  correct)  said,  at 
some  time  or  another,  on  its  own  responsible  motion,  and  by  way  of 
prediction,  that,  if  there  should  be  serious  division  in  the  Democratic 
ranks,  the  National  Convention  would  nominate  Jackson  for  a  third 
term.  This  prediction,  which  it  is  not  pretended  that  Jackson  ever  saw 
or  heard  of,  is  "the  ground  for  believing"  that  Jackson  would  have 
been  retained,  and  constitutes  the  head  and  front  of  that  great  man's 
offending  against  the  Washington  precedent  which  he  believed  in  so 
devoutly  and  acted  upon  so  faithfully.  It  is  impossible  to  take  such 
idle  trash  into  serious  consideration.  We  let  it  go  for  what  it  will 
fetch,  assuring  Mr.  Howe  that,  though  patience  is  not  our  special 
virtue,  we  are  able,  by  the  grace  of  God,  to  endure  this  harmless  kind 
of  nonsense  about  General  Jackson  without  losing  our  temper. 

Such  is  the  outcome  of  Mr.  Howe's  assault  upon  the  line  of  our 
great  retiring  Presidents,  from  Washington  to  Jackson  inclusive.  It 
must  be  admitted  that,  if  the  predetermined  object  of  the  attack  was 
to  make  himself  ridiculous,  it  is  a  marked  success ;  but  if  it  was  an 
effort  in  real  earnest  to  diminish  their  fame,  lower  their  standing,  or 
shake  the  confidence  of  the  country  in  their  virtue,  then  it  is  the  flat 
test  failure  in  his  essay — and  that  is  saying  a  great  deal. 


380  POLITICAL  ESSAYS  AND  LETTERS. 

It  is  not  simply  the  unworthiness  of  those  Presidents  who  have 
adopted  the  two-term  practice  which  makes  it  so  odious  in  the  eyes  of 
Mr.  Howe  ;  their  authority,  he  thinks,  is  overruled  by  the  different 
and  inconsistent  practice  of  others.  He  says  that  "  a  majority  of  our 
Presidents  have  retired  after  a  first  term,"  and  then  puts  the  very 
pertinent  question,  "Why  should  the  two-term  precedent  become  a 
part  of  our  governmental  system  more  than  the  one-term  system  ? " 
The  answer  is,  that  Mr.  Howe  is  mistaken  about  the  fact.  A  major 
ity  did  not  retire  after  a  first-term.  Previous  to  the  time  of  General 
Grant,  fourteen  citizens  had  been  elected  to  the  office  of  President. 
Five  of  them — Washington,  Jefferson,  Madison,  Monroe,  and  Jackson 
— were  elected  twice  and  retired  after  their  second  term.  Two — Har 
rison  and  Taylor — were  elected  once  and  died  in  office.  One — Lin 
coln — was  elected  twice  and  died  during  his  second  term.  Four — 
John  Adams,  J.  Q.  Adams,  Van  Buren,  and  Pierce — were  elected 
only  once.  They  did  not  retire  after  their  ter"m  expired,  but  were 
candidates  for  a  second  term.  Only  two  of  all  the  fourteen — Polk 
and  Buchanan — retired  upon  one  term  without  asking  a  re-election. 
It  is  exclusively  the  last  two  named  that  can  be  quoted  as  examples  of 
retirement  after  a  first  term.  Where,  if  not  in  Louisiana,  did  Mr. 
Howe  learn  that  two  were  a  majority  of  fourteen  ? 

But,  suppose  it  to  be  true  that  a  majority  of  our  Presidents  had 
voluntarily  and  actually  retired  after  their  first  term,  setting  aside  the 
two-term  precedent,  and  substituting  in  its  place  the  one-term  princi 
ple  "as  a  part  of  our  governmental  system,"  how  would  that  help  Mr. 
Howe's  argument  ?  He  is  opposed  to  the  two-term  rule,  and  wants 
to  prove  that  three  terms  are  better  ;  thereupon  he  asserts  that  the 
highest  authority  is  in  favor  of  only  one.  He  does  not  see  that  this  is 
a  logical  contradiction  of  himself  and  cuts  up  his  case  by  the  roots. 

In  the  article  we  are  reviewing,  the  author,  after  denouncing  the 
Washington  rule,  tries  to  evade  its  operation  upon  his  candidate  by 
saying :  "It  only  enjoins  retirement  after  a  second  term.  Grant  re 
tired  at  the  end  of  the  second  term  in  strict  accord  with  the  prece 
dents  and  the  resolution."  This  is  a  dodge,  and  not  a  very  artful  one 
either.  Grant  never  retired.  He  was,  according  to  Mr.  Howe's  own 
testimony,  a  candidate  in  1876,  defeated  by  the  influence  of  the 
Springer  resolution  and  the  cowardice  of  his  party  friends ;  he  has 
been  a  candidate  ever  since,  and  is  a  candidate  now.  Call  you  that 
retirement  "  in  strict  accord  with  the  precedents  and  the  resolution  "  ? 
He  was  compelled  to  forego  his  claim  to  a  third  term  when  his  sec 
ond  expired  ;  but  he  stood  back  for  the  time,  only  to  thrust  himself 
forward  again  at  the  first  opportunity.  How  does  that  accord  with 
the  precedents  ?  An  obligation  is  not  measured  merely  by  its  literal 
terms ;  it  must  be  met  in  good  faith  according  to  its  sense,  spirit, 
and  equity.  It  is  held  under  every  code  of  morals  and  of  law,  in 


POLITICAL  ESSA  YS  AND  LETTERS.  381 

all  civilized  countries,  that  a  performance  which  keeps  the  word  of 
promise  to  the  ear  and  breaks  it  to  the  hope  is  no  performance  at 
all.  For  instance,  an  agreement  to  discontinue  a  pending  action  is 
not  complied  with  by  formally  dismissing  the  suit  and  then  immedi 
ately  bringing  another ;  a  contract  to  deliver  a  certain  quantity  of 
cloth  in  pieces  is  broken  if  it  be  cut  into  pieces  so  small  as  to  make 
them  useless  ;  a  covenant  to  retire  from  the  possession  of  land  is 
not  fulfilled  when  the  occupant  goes  out  to-day  and  comes  back  to 
morrow.  This  principle  of  private  and  public  morality,  which  de 
tests  shams,  might  be  supported  by  innumerable  cases  if  it  were 
not  too  plain  to  need  illustration.  It  will  certainly  be  acknowledged 
by  every  candid  man  that,  if  General  Grant,  after  two  elections,  kept 
himself  in  the  field  as  a  persistent  candidate  for  a  third  term,  the 
pretense  that  he  retired  agreeably  to  the  precedents  is  untrue  and 
fraudulent.  But  the  imposture  is  not  chargeable  upon  him.  He  does 
not  pretend  to  have  retired.  He  is  a  candidate  for  another  term  in 
contempt  of  the  precedents.  He  does  not  evade,  but  boldly  defies 
the  authority  of  his  predecessors.  He  has,  and  is  entitled  to,  some 
credit  for  obtuseness  of  moral  perception,  but  still  he  is  conscious  that 
equivocation  is  as  bad  as  direct  falsehood  ;  and  we  have  no  right  to 
suppose  that  he  ever  adopted  the  Know-nothing  philosophy,  which 
teaches  its  disciples  to — 

"Palter  with  us  in  a  double  sense, 
And  lie  like  truth." 

Thus  far  I  have  been  answering  objections  to  the  two-term  rule, 
and  to  the  character  of  the  men  who  made  it.  I  think  it  may  be 
affirmed  with  some  confidence  that  Washington  was  not  unworthy 
of  the  profound  veneration  in  which  he  is  held  in  this  country  and 
throughout  the  world  ;  that  succeeding  Presidents,  when  they  fol 
lowed  his  footsteps,  not  only  acknowledged  his  wisdom  and  patriot 
ism,  but  showed  their  own;  that  the  American  people  of  our  day, 
when  they  refused  a  third  term  to  a  candidate  who  had  already  served 
for  two,  were  not  behaving  like  cowards  scared  by  a  senseless  clamor, 
but  doing  what  a  prudent  regard  for  their  true  interests  required ; 
that  when  the  House  of  Representatives,  in  obedience  to  the  universal 
sentiment  of  its  constituents,  unanimously  and  without  distinction  of 
party,  put  upon  its  records  and  published  to  the  world  its  solemn 
declaration  that  the  example  of  Washington  must  be  adhered  to  in 
the  future  as  in  the  past,  they  did  not  enact  charlatanism  or  repeat  a 
vociferation,  or  issue  a  strange  fulmination,  or  impeach  the  Constitu 
tion,  or  libel  its  framers,  or  counterfeit  history,  or  insult  common 
sense,  but  spoke  what  they  at  least  believed  to  be  the  words  of  truth 
and  soberness. 

But  perhaps  it  is  not  enough  to  have  negatived  Mr.  Howe's  allega- 


382  POLITICAL  ESSAYS  AND   LETTERS. 

tions.  We  are  not  to  set  up  political  dogmas  or  invoke  a  blind  faitli 
even  in  the  founders  of  the  republic.  The  mere  authority  of  names, 
however  great,  ought  not  to  command  our  assent.  We  should  have 
reasons  for  our  belief,  and  be  instant  in  season  and  out  of  season  to 
give  them  when  asked  for.  But  a  fundamental  doctrine,  self-evi- 
dently  true,  though  easy  to  defend,  is  the  hardest  of  all  things  to  sup 
port  by  affirmative  argument.  We  can  not  help  but  sympathize  with 
the  indignation  of  Pitt  when  he  thundered  out  his  refusal  to  look  at 
books  or  listen  to  logic  in  defense  of  English  liberty.  In  a  free 
country,  the  man  who  would  be  faithful  to  his  fellows  is  neces 
sarily  inclined  to  take  as  a  postulate  whatever  manifestly  tends  to  the 
preservation  of  the  public  right. 

In  the  matter  before  us,  it  should  be  plain  to  every  "reasonable 
creature  in  esse  "  that  long  continuance  of  supreme  executive  power 
in  one  hand  is  not  only  perilous  to  free  institutions,  but  perfectly  cer 
tain  to  destroy  them.  Some  fixed  time  there  ought  to  be  when  the 
people  will  not  only  have  the  right,  but  exercise,  it,  to  displace  their 
Chief  Magistrate  and  take  another.  If  they  do  not  possess  this  right, 
they  are  political  bond-servants  by  law  ;  if,  holding  it,  they  forego  the 
use  of  it,  they  make  themselves,  quoad  hoc,  voluntary  slaves,  and 
they  soon  come  to  be  governed  in  all  things  by  the  will  of  their  su 
perior.  A  lease  for  years,  renewable  and  always  renewed,  gives  the 
tenant  an  estate  without  end,  and  makes  him  lord  of  the  fee. 

Where  the  Chief  Magistrate  is  vested,  as  ours  is,  with  great  power 
liable  to  gross  abuse,  if  there  is  no  law  or  practice  which  forbids  him 
to  be  re-elected,  he  can  remain  in  office  for  life  as  easily  as  for  a  term. 
He  has  the  appointment  of  all  officers,  the  making  of  all  public  con 
tracts,  and  a  veto  upon  all  legislation,  besides  the  command  of  the 
army  and  navy.  By  an  unscrupulous  use  of  these  means  he  can 
coerce  not  only  his  horde  of  immediate  dependents,  but  he  can  control 
the  corporations  and  become  the  master  of  all  the  rings,  put  the  busi 
ness  of  all  classes  under  his  feet,  corrupt  the  venal,  frighten  the  timid, 
and  check  all  ambitions  but  his  own.  He  can  force  the  elections  of 
every  State  he  desires  to  carry  by  the  bayonets  of  his  army.  If  that 
fails,  he  can  order  a  false  return,  and  pay  for  it  out  of  the  public 
treasury.  The  people  would  soon  perceive  opposition  to  be  useless 
and  accept  the  situation  ;  elections  would  be  as  mere  a  matter  of  form 
as  they  were  in  Rome  when  such  consuls  as  Nero  and  Domitian  were 
elected  regularly  every  year  under  the  supervision  of  the  pretorian 
guards. 

If  these  were  no  more  than  remote  possibilities,  prudence  should 
guard  us  against  them.  But  they  are  near  probabilities ;  the  signs 
of  the  times  warn  us  that  the  peril  to  our  institutions  is  imminent ; 
the  danger  is  already  on  the  wing.  It  is  vain  to  remind  us  that  the 
President  swears  to  preserve,  protect,  and  defend  the  Constitution 


POLITICAL  ESSAYS  AND  LETTERS.  383 

and  see  the  laws  faithfully  executed.  That  is  true  ;  and  it  is  also 
true  that,  if  there  be  no  perjury  in  the  case,  the  Constitution,  laws, 
and  liberties  of  the  country  are  safe.  But  the  last  twenty  years  have 
given  us  ample  proof  that  an  oath  is  not  much  restraint  upon  a  Presi 
dent  who  is  incited  by  ambition,  rapacity,  or  strong  party  feeling,  to 
break  it. 

It  is  true  that  this  presupposes  a  people  much  degenerated,  and  a 
magistrate  animated  mainly  by  the  vulgar  love  of  power  for  its  own 
sake  ;  but  exactly  such  a  conjunction  of  things  has  always  been  feared 
with  good  reason,  and  hence  comes  the  desire  to  put  every  check  on 
that  tendency  to  "  strong  government  "  which  is  now  manifesting  it 
self  in  many  quarters. 

What  is  the  remedy  ?  How  shall  we  avert  the  dire  calamities  with 
which  we  are  threatened  ?  The  answer  conies  from  the  graves  of  our 
fathers  :  By  the  frequent  election  of  new  men.  Other  help  or  hope 
for  the  salvation  of  free  government  there  is  none  under  heaven. 

If  history  does  not  teach  this,  we  have  read  it  all  wrong.  In  the 
republics  of  ancient  and  modern  times  the  chief  magistrate  was  in 
trusted  with  only  temporary  power,  and  always  went  out  of  office  at 
the  end  of  a  short  period,  fixed  and  prescribed  by  law  or  custom.  It 
was  this,  indeed,  which  made  the  substantial  distinction  between  them 
and  the  monarchies  around  them.  An  unpunished  transgression  of 
the  customary  limitation  was  uniformly  followed  by  destruction. 
Everywhere  and  always  it  was  the  fatal  symptom  of  decay — the  sure 
forerunner  of  ruin.  When  Caesar  refused  to  lay  down  his  consulship, 
as  his  predecessors  had  done,  at  the  end  of  a  year,  and  was  re-elected 
time  after  time  with  the  acquiescence  of  the  Senate  and  the  people, 
all  that  was  real  in  Roman  freedom  ceased  to  exist.  Two  republics  in 
France  were  brought  to  an  end  in  the  same  way.  Napoleon  began  by 
being  Consul  for  a  term,  then  was  elected  for  life,  and  finally  became 
Emperor,  with  the  powers  of  an  absolute  despot.  The  last  Bonaparte 
was  President  for  four  years,  was  re-elected  for  ten,  and  ended,  like 
his  uncle,  in  grasping  the  imperial  crown. 

"  May  this  be  washed  in  Lethe  and  forgotten  "  ?  Shall  these  les 
sons  be  lost  ?  Shall  the  lamp  which  guided  our  forefathers  be  extin 
guished  ?  Shall  the  broad  daylight  of  all  human  experience  be  closed 
up  in  a  little  dark  lantern  manufactured  at  Milwaukee  ?  I  think  this 
can  not  be  done ;  "  the  eternal  verities "  are  against  it.  The  most 
powerful  third-termer  may  as  well  try  to  blow  out  the  sun,  as  he  would 
a  tallow  candle,  with  the  breath  of  his  mouth. 

Moreover,  the  two-term  principle  ought  to  be  adhered  to  by  us  and 
by  those  who  come  after  us  (if  there  were  no  other  reason),  simply 
because  it  was  a  practice  of  those  who  went  before  us.  It  is  to  the 
traditions  of  the  fathers  that  we  owe  our  civilization.  All  that  we 
have  which  is  holy  in  religion,  pure  in  morals,  or  perfect  in  politics, 


384  POLITICAL  ESSAYS  AND  LETTERS. 

is  so  derived  and  so  transmitted.  Without  that,  we  could  not  be  a 
nation  in  any  proper  sense  of  the  term,  but  a  mere  collection  of  bar 
barians,  tame  or  savage  according  to  circumstances.  The  practice  of 
one  generation  is  and  ought  to  be  law  for  another.  In  England  every 
custom  favoring  civil  liberty,  once  adopted  by  general  consent,  became 
binding  upon  prince  and  people.  These  customs  make  up  the  body 
of  the  common  law,  and  the  English  Constitution  itself  is  but  a  col 
lection  of  them.  "  Honor  thy  father  and  thy  mother,  that  thy  days 
may  be  long  in  the  land  " — this  command  was  addressed  to  a  people, 
and  it  was  length  of  national  life  that  God  promised  as  the  reward  of 
obedience.  The  later  prophets  spake  as  they  were  moved  when  they 
warned  that  same  people  that  their  institutions  would  perish  if  they 
were  given  unto  change,  and  exhorted  them  to  be  conservative — to 
" look  at  the  old  paths  and  stand  upon  the  ancient  ways." 

I  do  not  expect  anything  I  can  say  to  be  received  as  a  vindication 
of  the  two-term  rule.  Nor  is  it  necessary.  All  the  support  it  requires 
was  long  ago  furnished  by  another,  the  latchet  of  whose  shoes  I  am 
not  worthy  to  stoop  down  and  unloose.  Jefferson,  the  stainless  citi 
zen,  the  sterling  patriot,  the  unequaled  statesman— at  once  the  great 
est  apostle  and  the  truest  prophet  that  human  freedom  ever  had — gave 
his  judgment  not  only  at  the  time  he  acted  upon  the  rule,  but  ex 
pressed  his  convictions  after  they  were  strengthened  by  many  years  of 
later  reflection.  His  brief  autobiography,  written  in  the  retirement 
of  Monticello,  contains  the  following  passage  : 

This  Convention  met  in  Philadelphia  on  the  25th  of  May.  1787. 
It  sat  with  closed  doors,  and  kept  all  its. proceedings  secret  until  its 
dissolution  on  the  17th  of  September,  when  the  results  of  its  labors 
were  published  all  together.  I  received  a  copy  early  in  November, 
and  read  and  contemplated  its  provisions  with  great  satisfaction.  As 
not  a  member  of  the  Convention,  however,  nor  probably  a  single  citi 
zen  of  the  Union  had  approved  it  in  all  its  parts,  so  I,  too,  found  arti 
cles  which  I  thought  objectionable.  The  absence  of  express  declara 
tions  insuring  freedom  of  religion,  freedom  of  the  press,  freedom  of 
the  person  under  the  uninterrupted  protection  of  the  habeas  corpus, 
and  trial  by  jury  in  civil  as  well  as  in  criminal  cases,  excited  my  jeal 
ousy,  and  the  re-eligibility  of  the  President  for  life  I  quite  disapproved. 
I  expressed  freely  in  letters  to  my  friends,  and  most  particularly  to 
Mr.  Madison  and  General  Washington,  my  approbations  and  objec 
tions.  How  the  good  should  be  secured  and  the  ill  brought  to  rights 
was  the  difficulty.  To  refer  it  back  to  a  new  Convention  might  en 
danger  the  loss  of  the  whole.  My  first  idea  was,  that  the  nine  States 
first  acting  should  accept  it  unconditionally,  and  thus  secure  what  in 
it  was  good,  and  that  the  last  four  should  accept  on  the  previous  con 
dition  that  certain  amendments  should  be  agreed  to ;  but  a  better 
course  was  devised,  of  accepting  the  whole  and  trusting  that  the  good 
sense  and  honest  intuitions  of  our  citizens  would  make  the  alterations 
which  should  be  deemed  necessary.  Accordingly,  all  accepted,  six 
without  objection  and  seven  with  recommendations  of  specified  amend- 


POLITICAL  ESSAYS  AND  LETTERS.  385 

ments.  Those  respecting  the  press,  religion,  and  juries,  with  several 
others  of  great  value,  were  accordingly  made ;  but  the  habeas  corpus 
was  left  to  the  discretion  of  Congress,  and  the  amendment  against  the 
re-eligibility  of  the  President  was  not  proposed.  My  fears  of  that 
feature  were  founded  on  the  importance  of  the  office,  on  the  fierce 
contentions  it  might  excite  among  ourselves,  if  continuable  for  life, 
and  the  dangers  of  interference,  either  with  money  or  arms,  by  foreign 
nations  to  whom  the  choice  of  an  American  President  might  become 
interesting.  Examples  of  this  abounded  in  history  ;  in  the  case  of  the 
Eoman  Emperors,  for  instance ;  of  the  Popes,  while  of  any  significance  ; 
of  the  German  Emperors ;  the  Kings  of  Poland,  and  the  Deys  of  Bar- 
bary.  I  had  observed,  too,  in  the  feudal  history,  and  in  the  recent 
instance  particularly  of  the  Stadtholder  of  Holland,  how  easily  offices 
or  tenures  for  life  slide  into  inheritances.  My  wish,  therefore,  was 
that  the  President  should  be  elected  for  seven  years  and  be  ineligible 
afterward.  This  term  I  thought  sufficient  to  enable  him,  with  the  con 
currence  of  the  Legislature,  to  carry  through  and  establish  any  system 
of  improvement  he  should  propose  for  the  general  good.  But  the 
practice  adopted,  I  think,  is  better,  allowing  his  continuance  for  eight 
years,  with  a  liability  to  be  dropped  at  half-way  of  the  term,  making 
that  a  period  of  probation.  That  this  continuance  should  be  restrained 
to  seven  years  was  the  opinion  of  the  Convention  at  an  earlier  stage  of 
its  session,  when  it  voted  that  term  by  a  majority  of  eight  against  two, 
and  by  a  simple  majority  that  he  should  be  ineligible  a  second  time. 
This  opinion  was  confirmed  by  the  House  so  late  as  July  26th,  referred 
to  the  committee  of  detail,  reported  favorably  by  them,  and  changed 
to  the  present  form  by  final  vote,  on  the  last  day  but  one  of  their  ses 
sion.  Of  this  change  three  States  expressed  their  disapprobation — 
New  York  by  recommending  an  amendment  that  the  President  should 
not  be  eligible  a  third  time,  and  Virginia  and  North  Carolina  that  he 
should  not  be  capable  of  serving  more  than  eight  in  any  term  of  six 
teen  years  ;  and,  though  this  amendment  has  not  been  made  in  form, 
yet  practice  seems  to  have  established  it.  The  example  of  four  Presi 
dents  voluntarily  retiring  at  the  end  of  their  eighth  year,  and  the  prog 
ress  of  public  opinion  that  the  principle  is  salutary,  have  given  it  in 
practice  the  form  of  precedent  and  usage ;  insomuch  that,  should  a 
President  consent  to  be  a  candidate  for  a  third  election,  I  trust  he 
would  be  rejected  on  this  demonstration  of  ambitious  views. 

It  is  time  now  that  we  come  to  the  concrete  part  of  the  subject. 
The  practical  object  of  Mr.  Howe's  article  is  to  make  General  Grant 
President  for  another  term.  It  is  not  for  an  abstraction  that  he  de 
nounces  the  two-term  precedent  and  vilifies  the  Springer  resolution. 
The  rule  might  stand  if  Grant  could  be  elected  without  breaking  it 
down.  But  Mr.  Howe  thinks  that  the  superiority  of  his  candidate 
is  so  very  great  that  all  authorities  which  oppose  him  should  be  dis 
regarded,  and  he  supports  this  opinion  by  assertions  so  extravagant 
that  we  only  wonder  how  any  man  in  his  sober  senses  could  have  made 
them. 

He  pictures  Grant  as  "the  foremost  man  of  his  age" ;  says  "he 
stands  upon  the  mountain-top,"  and  declares  that  "the  eager  world 

25 


386  POLITICAL  ESSAYS  AND  LETTERS. 

has  set  the  seal  of  its  primacy  "  on  him.  Grant's  competitors — Elaine, 
Conkling,  Bristow,  Hayes,  and  the  rest  of  them — are  described  as 
"mere  metallic  calves,"  and  all  his  opponents  are  scared  miners,  with 
candles  in  their  caps,  "going  into  subterranean  depths  to  quarry  out  a 
President."  This  imagery  is  bold  and  original,  though  not  highly 
poetic  nor  very  gracefully  turned.  It  is  Mr.  Howe's  way  of  saying 
that  he  will  be  very  wroth  if  Grant  is  not  made  President  a  third  time, 
in  spite  of  the  salutary  principle  which  forbids  it.  But  we  are  more 
afraid  of  General  Grant  than  we  are  of  Mr.  Howe  ;  we  would  infinitely 
rather  be  scolded  by  the  one  than  scourged  by  the  other ;  and  there 
fore  we,  the  yeomanry  of  the  country,  driven  to  a  choice  of  evils,  pre 
sume  to  withstand  Mr.  Howe,  and  tell  him  in  his  senatorial  face  that 
his  master  shall  not  be  ours  if  we  can  help  it.  When  it  comes  to  the 
tug,  General  Grant  may  be  too  much  for  the  nation,  but  it  shall  not 
be  said  that  we  are  frightened  by  this  preliminary  blast  of  mere  wind. 

A  third  term  for  Grant  does  not  mean  a  third  term  only,  but  any 
number  of  terms  that  he  chooses  to  demand.  The  imperial  method 
of  carrying  all  elections  by  corruption  or  force,  or  of  declaring  them 
to  be  carried  when  they  are  not,  is  to  be  permanently  substituted  for 
the  system  of  free,  popular  choice. 

The  figure  of  Grant  standing  with  the  seal  of  primacy  on  the 
mountain-top  and  looking  down  on  the  inhabitants  of  the  plain  below 
gives  a  measure  of  the  elevation  which  his  sycophants  natter  him  with 
the  hope  of  attaining.  They  urge  the  necessity  of  a  strong  government 
almost  in  the  very  words  used  by  the  adherents  of  Caesar  and  the  two 
Napoleons.  Strong  government,  in  their  sense,  means  weak  laws  and 
a  strong  ruler — in  other  words,  a  substantial  monarchy,  powerful  in 
its  scorn  of  all  legal  restraints.  If  Mr.  Howe  does  not  know  this  to 
be  the  design,  he  is  not  fit  to  share  in  the  third-term  movement,  much 
less  to  lead  it.  He  should  learn  the  views  of  his  faction  with  all  possi 
ble  haste.  Let  him  hear  the  revelations  of  Senator  Sharon,  who  is  not 
a  "metallic  calf"  nor  a  scared  miner,  but  a  worshiper  of  the  man  on 
the  mountain  as  eager  as  himself.  Let  him  look  at  the  idea  of  a  strong 
government  as  given  in  the  February  Atlantic  Monthly;  let  him 
listen  to  the  diatribes  of  all  his  associates,  who  speak  with  habitual 
contempt  about  the  rights  of  the  States,  or  let  him  go  up  to  the 
mountain  and  ask  His  Primacy  what  he  himself  thinks  of  a  President 
who  is  tame  enough  to  keep  his  oath  of  fidelity  to  an  old  Constitution 
which  forbids  him  to  trample  upon  the  rights  of  the  people. 

We,  the  people— I  do  not  speak  by  authority,  but  truly  as  far  as  I 
know — we,  the  people,  are  not,  in  every  event,  and  in  all  possible  con 
tingencies,  unalterably  opposed  to  a  strong  government  with  General 
Grant  for  a  monarch.  If  his  instatement  can  be  accomplished  by  the 
direct  application  of  physical  force,  without  any  shams  or  false  pre- 
'  tenses,  it  may  be  a  comparative  good  for  us.  If,  instead  of  swearing 


POLITICAL  ESSA  YS  AND  LETTERS.  387 

to  preserve,  protect,  and  defend  the  Constitution,  he  will  candidly 
declare  it  abolished,  and  have  no  perjury  in  the  business,  we  may  ac 
cept  our  fate,  and  accept  it  uncomplainingly,  lest  a  worse  thing  come 
to  us.  A  rotten  republic  is  an  infinitely  worse  thing. 

A  free  democratic  republican  system  of  government,  honestly  ad 
ministered  by  agents  of  the  people's  true  choice ;  a  government  such 
as  ours  was  intended  to  be,  with  the  powers  of  the  Federal  Govern 
ment,  the  rights  of  the  States,  and  the  liberties  of  the  people  so  har 
moniously  adjusted  that  each  may  check  the  excesses  of  the  other — 
such  a  government,  scrupulously  administered  within  its  constitutional 
limits,  is,  without  doubt,  the  choicest  blessing  that  God  in  his  loving- 
kindness  ever  vouchsafed  to  any  people.  On  the  other  hand,  it  is 
quite  as  sure  that  the  false  administration  of  a  government  theoreti 
cally  free  ;  which  acknowledges  the  rights  of  the  people,  and  yet  con 
tinually  treads  them  under  foot ;  which  swears  to  save,  and  perjuriously 
works  to  destroy;  which  receives  and  promises  to  execute  a  most 
sacred  trust,  according  to  terms  prescribed  with  unmistakable  clear 
ness,  and  then  dishonestly  breaks  the  engagement — such  a  government, 
so  conducted,  is  an  unspeakable  curse.  It  is  not  only  an  oppression, 
but  a  most  demoralizing  cheat ;  a  base  imposture,  more  degrading  to 
the  nation  which  submits  to  it  than  the  heaviest  yoke  that  despotic 
tyranny  can  fasten  on  its  neck.  If,  therefore,  a  constitutional  and 
legal  administration  of  our  national  affairs  be  out  of  the  question — if 
our  only  choice  lies  between  a  perverted  republic  and  a  monarchy — 
then  stop  this  hypocritical  pretense  of  free  government,  and  give  us 
a  king.  And  who  shall  be  our  royal  master  but  Grant  ?  That  he 
will  serve  the  turn  as  well  as,  if  not  better  than,  another,  will,  I  think, 
be  admitted  by  all  who  attend  to  the  reasons  now  presently  to  be 
enumerated. 

In  the  first  place,  a  new  monarch  (that  is,  one  who  has  no  hered 
itary  claims)  ought  to  be  an  approved  good  soldier,  with  skill  to 
enforce  obedience  ;  otherwise  his  sway  could  not  last  long  over  people 
disposed  to  be  turbulent.  All,  or  nearly  all,  the  founders  of  royal 
lines  have  been  military  men,  from  Nimrod  downward.  It  is  vain  to 
deny  that  General  Grant's  reputation  for  military  talent  is  well-found 
ed.  It  is  more  than  doubtful  if  any  officer  of  our  army  could  have 
subjugated  the  South  so  completely  even  with  all  Grant's  advantages, 
or  taken  so  many  defeats  and  still  won  a  complete  victory  in  the  end. 
It  is  not,  however,  what  he  has  done,  but  what  he  has  shown  himself 
capable  of  doing,  that  gives  him  his  leading  qualification  for  master- 
dom  now.  The  fear  that  goes  before  him  will  make  actual  violence 
unnecessary.  His  strength  of  character  will  frighten  his  subjects 
into  submission  where  a  weaker  man  would  be  compelled  to  butcher 
them  for  insurrection. 

General  Grant  is  a  good  hater  of  those  who  thwart  him,  which 


388  POLITICAL  ESSAYS  AND  LETTERS. 

is  natural,  and  not  a  serious  fault ;  but  he  is  not  fiercely  yindictive, 
and  his  career  has  been  marked  by  no  act  of  savage  cruelty.  He 
could  not  be  an  Antonine  or  a  Titus,  but  we  can  trust  him  not  to  be 
a  Nero. 

It  may  be  objected  that  his  moral  behavior  and  mental  acquire 
ments  do  not  bring  him  up  to  the  mark  which  ought  to  be  reached 
by  the  permanent  ruler  of  a  great,  intelligent,  and  highly  civilized 
nation.  But  in  this  respect  he  is  as  good  as  the  average  of  sovereign 
princes.  The  present  reigning  family  of  England  has  never  had  a 
male  member  who  was  his  superior.  For  centuries  past  the  potentates 
of  Continental  Europe,  with  only  a  few  exceptions,  have  had  habits 
as  coarse  as  his,  and  he  is  wholly  free  from  some  terrible  vices  to 
which  many  of  them  were  addicted.  It  seems  to  me  that  he  will  do 
well  enough  to  "  herd  with  vulgar  kings." 

The  nepotism  from  which  our  democratic  tastes  revolt  is  virtue 
in  a  king.  All  monarchs  are  expected  to  look  after  their  own  families 
first,  and  all  have  their  minions  and  favorites  whom  they  fatten,  spoil, 
and  corrupt.  Who  among  them  has  not  given  his  protection  to  a 
worse  set  than  Grant  ? 

The  favor  which  Grant  bestows  upon  corrupt  rings  is  given  for  a 
purpose.  As  a  candidate  he  can  not  be  elected,  as  President  he  can 
not  sustain  himself,  without  their  'support ;  but  enthrone  him  and  he 
can  afford  to  defy  them.  May  we  not  reasonably  hope  that  he  will 
use  his  power,  when  it  becomes  omnipotent,  to  make  these  bad  com 
binations  cease  to  plunder  the  people  ? 

What  we  call  the  greediness  of  General  Grant  for  the  wages  of 
official  iniquity  would  be  entirely  proper  in  the  supreme  ruler  of  an 
absolute  government.  It  is  not  bribery  to  buy  the  favor  of  a  king 
with  presents,  and  a  king  is  not  guilty  of  stealing  when  he  helps  him 
self  to  public  money  without  legal  right. 

It  looks  to  us  like  a  terrible  outrage  for  a  President  to  have  him 
self  represented  at  a  State  election  by  the  bayonets  of  his  standing 
army,  to  install  Governors  that  were  rejected  at  the  polls,  to  tumble 
the  chosen  Legislature  of  a  free  State  out  of  its  hall,  to  procure  the 
fabrication  of  false  returns  and  force  them  on  the  people.  But  Gen 
eral  Grant's  lawlessness  would  be  lawful  in  a  country  governed  by  the 
mere  will  of  a  personal  sovereign.  Where  there  is  no  law  there  can  be 
no  transgression. 

But  while  General  Grant  has  some  qualities  which  would  make 
him  a  tolerable  king,  and  none  that  would  make  him  an  unendurably 
bad  one,  he  is  not  at  all  the  kind  of  person  that  is  needed  as  Presi 
dent  of  the  United  States,  on  the  assumption  that  our  system  of  gov 
ernment  is  to  be  continued.  I  think  it  is  to  be  continued.  Unlike 
Mr.  O'Conor,  I  believe  that  the  struggle  to  get  it  honestly  adminis 
tered  is  not  hopeless.  We  are  not  yet  reduced  to  the  necessity  of 


POLITICAL  ESSAYS  AND  LETTERS.  389 

choosing  between  a  republic  wholly  corrupt  and  a  monarchy  founded 
in  pure  force.  Therefore/ 1  conclude  with  Jefferson  that,  if  any  man 
(General  Grant  particularly)  "  consent  to  be  a  candidate  for  a  third 
election,  I  trust  he  will  be  rejected  on  this  demonstration  of  ambitious 


GENERAL  GRANT  AND  STRONG  GOVERNMENT. 

I  EXPECTED  to  write  for  this  number  of  the  Review  an  essay  on 
"  Strong  Government,"  to  show  the  calamitous  evils  it  has  brought 
on  other  countries,  and  to  point  out  the  dangers  with  which  our  own 
is  threatened  by  its  stealthy  approaches.  And  herein  I  would  have 
tried  to  make  plain  the  principle  of  State  rights,  the  solemnity  of  the 
compact  by  which  those  rights  were  reserved,  the  dishonesty  (not  the 
error)  of  the  interpretation  which  denies  them,  and  the  duty  of  main 
taining  them  as  the  sheet-anchor  of  individual  liberty.  But  Mr.  Bout- 
well  turns  me  aside,  or  rather  puts  me  back,  by  a  new  defense  of  the 
third  term,  which,  upon  the  prudent  principle  of  obsta  principiis,  the 
friends  of  free  government  must  settle  first  of  all ;  for  this  third-term 
innovation  is  to  arbitrary  power  what  a  rat-hole  in  a  Dutch  dike  is  to 
the  surging  waters  of  the  ocean  :  if  not  stopped  up,  it  must  become  a 
huge  crevasse,  submerging  all  the  land. 

I  do  not  complain  of  Mr.  BoutwelPs  article.  He  had  a  right  to 
interject  his  antagonism,  and  he  is  an  opponent  not  to  be  ignored. 
He  is  (or  has  been)  a  high-placed  gentleman — Governor  of  Massachu 
setts,  Representative  in  Congress,  Senator  of  the  United  States,  and 
Secretary  of  the  Treasury.  Besides,  he  is  a  man  of  authority  in  his 
faction,  and  trusted  to  do  their  polemics.  When  he  speaks  it  is  with 
a  voice  potential,  as  double  as  that  of  any  leader  among  them  ;  and, 
on  certain  points,  his  expressive  silence  reveals  the  designs  of  his  as 
sociates  as  well  as  his  own.  Moreover,  his  article  has  some  fragments 
of  precious  truth,  which  he  has  dropped  along  the  path  of  his  argu 
ment,  apparently  unconscious  of  their  value.  These  I  propose  to 
gather  up  for  the  service  of  liberty  and  justice,  to  which  all  truth  be 
longs. 

He  admits  that  Washington  and  Jefferson  were  patriotic  and  far- 
sighted  men,  entitled  to  a  veneration  which  will  "  survive  the  criticism 
of  Judge  Howe,  and  outlive  the  defense  of  Judge  Black"  (p.  372). 
The  whole  American  Democracy  will  thank  Mr.  Boutwell  for  this  un 
expected  and  most  liberal  concession.  The  friends  of  free  government 
in  every  land  and  clime  throughout  the  earth  will  be  rejoiced  to  learn 
that  the  Father  of  this  Republic,  and  his  great  coadjutor  the  Apostle 
of  Liberty,  are  acknowledged  to  be  venerable  even  by  a  subverter  of 


390  POLITICAL  ESSAYS  AND  LETTERS. 

their  work,  a  contemner  of  their  great  example,  a  most  obstinate  dis 
believer  in  their  teachings.  I  am  placed  individually  under  special 
obligations  to  Mr.  Boutwell  by  his  gracious  permission  to  speak  well 
of  Washington  and  Jefferson  without  injuring  them  fatally  in  his  esti 
mation.  When  he  agrees  that  the  fame  of  those  illustrious  men  may 
still  live,  notwithstanding  my  defense  of  them  against  the  aspersions 
of  Mr.  Howe,  he  accords  me  a  high  privilege,  and  binds  me  to  him 
"with  cords  of  perdurable  toughness." 

Mr.  Boutwell  gives  us  to  understand  (p.  371)  that  the  character 
of  Washington  is  not  to  be  attacked  just  now,  because  "  his  example 
is  not  the  only  remaining  bulwark  for  the  protection  of  our  assailed 
and  imperiled  liberties.  If  this  be  so,  then  the  reputation  of  Wash 
ington  will  need  a  more  ardent  defender  "  than  I.  There  is  some  ob 
scurity  about  this  language,  but  the  unavoidable  inference  from  it 
seems  to  be  that  the  projectors  of  a  "strong  government1''  intend  to 
break  down  all  the  other  defenses  of  civil  liberty  first,  and  then,  when 
nothing  but  the  example  of  Washington  shall  be  left  for  the  people  to 
rally  upon,  his  reputation  will  be  assaulted  so  ferociously  that  no  ardor 
of  defense  can  save  it  from  destruction.  Be  it  so.  t  "  Sufficient  unto 
the  day  is  the  evil  thereof."  I  shall  be  out  of  the  way  before  that  last 
struggle  takes  place,  but  I  shall  die  in  the  belief  that  the  great  name 
of  Washington  will  continue  to  be  a  bulwark  of  civil  liberty,  invincible 
forever.  If  the  worst  comes  to  the  worst,  and  we  have  no  other  shield, 
they  who  rush  upon  the  thick  bosses  of  that  one  will  but  dash  them 
selves  to  pieces.  Evidently  Mr.  Boutwell  does  not  see  the  grandeur 
of  Washington's  character  or  the  impregnable  basis  upon  which  it 
stands.  The  moral  influence  of  it  on  the  hearts  of  all  the  world,  ex 
cept  a  few  narrow-minded  and  ignorant  enemies  of  constitutional  gov 
ernment,  is  much  greater  than  he  thinks. 

But  this  is  a  point  on  which  there  is  not  now  any  dispute  between 
Mr.  Boutwell  and  me.  He  gives  it  up  that  both  Washington  and  Jef 
ferson  were  wise  and  patriotic  men,  for  whom  there  is  no  lack  of  ven 
eration.  It  is  not  true,  however,  that  my  "argument  against  the 
election  of  any  person  to  the  presidency  a  third  time  is  based  (exclu 
sively)  upon  the  example  of  Washington  and  the  declarations  of  Jeffer 
son."  He  was  bound  to  know,  and,  if  he  read  the  paper  he  was  answer 
ing,  he  did  know,  that  I,  as  well  as  all  the  friends  of  the  two-term  rule, 
based  our  support  of  it  upon  the  additional  authority  of  Madison, 
Monroe,  and  Jackson,  who  greatly  strengthened  the  principle,  and 
increased  the  value  of  the  precedent  by  repeating  it.  They  stood  as 
palpably  in  the  way  of  the  third-termers  as  Washington  and  Jefferson  ; 
and  yet  Mr.  Boutwell  has  not  a  word  to  say  against  them.  I  take  this 
as  an  acknowledgment  that  they  too  have  a  title  to  general  veneration 
which  can  not  be  questioned.  All  of  our  great  exemplars  are  allowed, 
at  least  for  the  present,  to  pass  with  the  luster  of  their  reputations 


POLITICAL  ESSAYS  AND  LETTERS.  391 

undiminished.  For  this  I  can  but  renew  the  expressions  of  my  grati 
tude  to  Mr.  Boutwell  and  the  other  strong-government  men,  for  whom 
he  speaks. 

But  the  rule  is  not  established  only  by  the  example  and  precept  of 
the  retiring  Presidents.  It  has  a  still  broader  and  deeper  foundation 
in  the  collective  wisdom  of  the  whole  nation,  which  is  the  highest 
source,  the  best  authority,  and  the  strongest  support  of  all  law. 

Mr.  Boutwell  tries  to  disparage  it  by  saying  that  Washington, 
Jefferson,  and  Madison  could  not  have  believed  in  it,  else  they  would 
have  made  it  a  part  of  the  written  Constitution.  He  says,  substan 
tially,  that,  if  they  had  thought  a  limitation  upon  the  tenure  of  the 
executive  office  proper  or  necessary,  their  failure  to  put  a  provision 
for  that  purpose  into  the  organic  law  was  a  disregard  of  their  duty  so 
gross  that  it  admits  of  no  excuse  or  apology.  This  is  an  attempt  to 
reason  falsely  from  perverted  facts.  Mr.  Boutwell  would  never  have 
tried  it  if  he  could  have  kept  clear  of  it ;  but  he  had  to  construct  his 
argument  out  of  the  materials  which  the  strong-government  men  gave 
him,  and  this  was  the  best  they  could  furnish.  The  known  truth 
contradicts  every  word  of  it. 

Washington  and  Madison  acted  throughout  the  session  of  the  Con 
vention  in  steady  opposition  to  unlimited  re-elections.  How  or  why 
the  provision  came  to  be  dropped  out  of  the  plan  at  the  very  close  of 
the  session  needs  no  explanation  here  :  it  is  certain  that  Washington 
and  Madison  were  in  no  wise  to  blame  for  it.  They  both  thought  it 
a  misfortune,  and  to  this  conviction  all  their  conduct  was  faithful 
afterward  as  well  as  before.  When  Jefferson,  who  had  been  absent  on 
the  mission  to  France,  returned  home,  he  conferred  with  them  and 
others  on  the  best  mode  of  remedying  this  and  some  other  defects  in 
the  instrument ;  but,  fearing  that  a  serious  or  protracted  opposition 
might  cause  it  to  fall  through  altogether,  they  concluded  to  advise  its 
immediate  and  unconditional  ratification.  The  certainty  that  Washing 
ton  would  be  the  first  President,  and  the  belief  that  his  example  would 
make  a  law  as  effective  as  any  that  could  be  framed  in  written  words, 
reconciled  the  country,  and  gave  the  whole  people  faith  in  the  per 
petuity  of  their  institutions.  That  Washington  considered  a  third 
term  as  leading  to  the  overthrow  of  the  Government,  and  intended  his 
own  retirement  to  be  a  precedent  which  would  shield  us  from  that 
danger,  is  a  fact  so  notorious  that  Mr.  Boutwell  himself  can  not  shut 
his  eyes  upon  it.  After  saying  (p.  375)  that  Washington  (l yearned 
for  the  peace  and  quiet  of  private  life,"  he  adds  this  remarkable  lan 
guage — remarkable,  I  mean,  as  coming  from  him  :  (( Nor  can  there  be 
a  doubt  that,  superadded  to  these  personal  considerations,  was  the 
thought  that  his  example  might  serve  as  a  restraint  in  case  of  the  ap 
pearance  of  a  popular  leader  who  should  seek  to  subvert  the  Government 
through  successive  elections." 


892  POLITICAL  ESSA  YS  AND  LETTERS. 

Truer  words  than  these  were  never  spoken.  But  they  are  not  all 
the  truth.  Mr.  Boutwell  should  have  added  that  Washington's  retire 
ment  was  then  and  there  accepted  by  the  nation  as  supplying  the  want 
of  a  written  interdict  upon  a  third  term  ;  as  filling  up  the  casus  omis- 
sus  in  the  Constitution  ;  as  making  a  part  of  our  free  institutions  ;  as 
interposing  a  safeguard  against  a  subversion  of  the  Government  by  suc 
cessive  elections — as  the  beginning  of  a  custom  which  should  have  "no 
variableness,  neither  shadow  of  turning."  If  anybody  suspects  me  of 
overstating  the  case,  let  him  look  at  the  record  and  be  satisfied. 

In  December,  1796,  Washington  opened  the  session  of  the  last  Con 
gress  that  assembled  under  his  Administration,  as  was  his  wont,  with 
a  speech,  in  the  course  of  which  he  simply  referred  to  the  situation  in 
which  he  stood  for  the  last  time  in  the  midst  of  the  people's  repre 
sentatives.  The  answer  shows  what  construction  was  then  given  to 
his  conduct  in  declining  a  third  election ;  how  gratefully  it  was  ac 
cepted  and  how  highly  it  was  appreciated  as  a  precedent  for  the  future. 
The  representatives,  speaking  for  themselves  and  the  nation,  of  whose 
hearts  they  believed  themselves  the  faithful  interpreters,  said  that 
"that  event  of  itself  completed  the  luster  of  a  character  already  con 
spicuously  unrivaled  by  the  coincidence  of  virtue,  talents,  success,  and 
public  estimation."  This  act,  like  his  resignation  as  Commander-in- 
Chief,  they  affirmed  to  be  "  no  less  rare  to  mankind  than  valuable  to 
a  republic"  ;  and  concluded  thus  :  "For  your  country's  sake — for  the 
sake  of  republican  liberty — it  is  our  earnest  wish  that  your  example 
may  be  the  guide  of  your  successors,  and  thus,  after  being  the  orna 
ment  and  safeguard  of  the  present  age,  become  the  patrimony  of  our 
descendants." 

Jefferson's  adoption  of  the  Washington  precedent  was  more  uni 
versally  approved  than  any  other  act  of  his  pure  and  beneficent  life, 
and  the  reasoning  by  which  he  showed  that  a  third  term  was  incon 
sistent  with  the  safety  of  the  republic  has  never  been  controverted  by 
his  worst  detractors.  By  the  time  Madison  served  out  his  two  terms, 
the  rule  had  become  so  firmly  fixed  in  our  system  that  even  the  Father 
of  the  Constitution,  fresh  though  he  was  from  a  victorious  struggle 
with  the  enemies  of  the  nation  in  Old  England  and  New  England, 
could  have  done  nothing  either  to  strengthen  or  to  weaken  it.  It  is 
true  also  of  Monroe,  that  nothing  was  left  him  but  implicit  obedience. 
He  treated  the  two-term  rule  as  a  settled  institution,  and,  if  he  had 
shown  the  slightest  sign  of  disrespect  for  it,  he  would  have  lost  for 
ever  the  unbounded  popularity  which  he  had  won  by  long  years  of 
virtuous  service. 

Jackson  was  as  faithful  to  it  as  any  of  his  predecessors,  and  be 
lieved  as  devoutly  as  they  did  that  the  continuance  of  one  man  in 
the  presidential  office  for  an  indefinite  time  was  in  deadly  conflict 
with  the  fundamental  idea  of  a  republican  government.  But  he 


POLITICAL  ESSA  YS  AND  LETTERS.  393 

doubted  the  stability  of  the  custom.  The  fervent  love  with  which 
he  was  wedded  to  his  country  made  him  jealous  of  the  efforts  which 
might  be  used  to  debauch  her  virtue.  He  had  seen  strong  govern 
ment  raise  its  head  almost  as  impudently  as  we  see  it  now.  In  de 
fense  of  the  Constitution,  he  so  wounded  the  monster  that  most 
men  thought  it  forever  disabled.  But  he  was  fully  conscious  that 
he  had  "scotched  the  snake,  not  killed  it."  He  feared  that  some 
adventurous  enemy  of  equal  rights,  aided  by  a  combination  of  special 
interests  with  corrupt  politicians,  would  contrive  an  excuse  for  break 
ing  through  the  unwritten  law  and  get  a  following  large  enough  to 
do  it.  To  prevent  that  calamity  he  proposed  an  amendment  to  the 
Constitution  which  would  put  an  express  limitation  on  the  right  of 
re-election.  His  view  was  not  concurred  in.  The  representatives  of 
the  people  and  the  people  themselves  thought  the  custom  as  strong  as 
any  amendment  could  make  it.  Jackson,  acquiescing,  was  content  to 
strengthen  it  by  adding  his  own  example  to  the  others. 

From  that  time  to  the  summer  of  1875  the  wisdom  or  necessity 
of  the  two-term  rule  was  never  questioned.  Nobody  denied  its 
binding  force  on  the  national  conscience,  and  the  current  of  popular 
feeling  in  its  favor,  like  a  great  river  receiving  its  affluents  from 
every  region  it  drains,  became  wider  and  deeper  as  it  rolled  down 
through  the  ages.  Of  this,  the  most  unmistakable  evidence  that 
could  be  given  is  the  rebuke  so  solemnly  and  unanimously  admin 
istered  by  the  House  of  Representatives  to  General  Grant  when  he 
began  to  be  pressed  for  a  third  election.  That  resolution  was  received 
with  a  shout  of  universal  approbation.  Mr.  Boutwell's  studied  ab 
stinence  from  all  allusion  to  it  shows  that  he  believes  it  to  have  been 
the  true  expression  of  a  determination  to  stand  by  the  two-term  rule, 
and  guard  it  well  against  the  venal  ambition  which,  by  breaking  it 
down,  would  bring  our  free  institutions  into  peril.  Both  the  Con 
gress  of  1796,  which  thanked  the  Father  of  his  Country  for  making 
that  salutary  precedent,  and  the  Congress  of  1875,  which  refused  to 
abandon  it  after  eighty  years  of  use,  faithfully  interpreted  the  heart 
of  the  nation  ;  each  was  a  mirror  of  existing  public  opinion  ;  and 
each  "gave  to  the  very  age  and  body  of  the  time  its  form  and  press 
ure." 

Our  Saxon  ancestors  had  certain  customs  which  made  them  the 
freest  people  then  in  the  world.  Few  of  those  customs  were  so  well 
established  as  this  one  of  ours  by  uninterrupted  use  and  universal 
consent ;  but  they  were  customs  generally  acquiesced  in,  and  there 
fore  laws  which  enlarged  their  own  liberties  and  defended  their  rights 
against  the  encroachments  of  monarchy.  Then  rose  a  king,  greedy 
for  strong  government,  and  anxious  above  all  things  to  abolish  the 
popular  customs  which  limited  his  power.  He  and  his  corrupt  para 
sites  tried  all  that  in  them  lay,  now  by  insidious  wiles  and  again  by 


394  POLITICAL  ESSA  YS  AND  LETTERS. 

threats  of  force,  to  get  a  surrender  of  those  customary  rights.  But 
the  barons,  speaking  for  themselves  and  for  the  freemen  under  their 
protection,  gave  him  that  memorable  answer,  simple  to  be  sure,  but 
made  sublime  by  the  occasion:  " Nolumus  leges  Anglm  mutare." 
("We  will  not  change  the  laws  of  England.")  This  substantially 
was  the  answer  which  Grant  got  from  the  Congress  of  1875  when  he 
wanted  to  abandon  a  time-honored  custom  which  was  "  part  of  our 
free  institutions."  May  God  forbid  that  he  or  his  minions  should 
ever  have  any  other  ! 

Mr.  Boutwell  protests  most  vehemently  against  the  binding  obliga 
tion  of  a  custom  ;  he  asserts  that  the  tradition  of  the  fathers  with 
respect  to  a  third  term  can  never  have  the  effect  of  a  written  restric 
tion — that  the  tradition  in  question  is  not  what  Congress  said  it  was 
in  1875,  a  part  of  our  free  institutions  ;  that  it  is  a  mere  opinion  en 
tertained  by  men  of  a  past  generation,  but  entitled  to  no  controlling 
influence  at  the  present  time.  He  will  not  condescend  to  give  rea 
sons  for  this  judgment;  " statement,"  he  says,  "is  sufficient;  argu 
ment  is  unnecessary."  And  here  is  the  statement:  "We  refuse  to 
allow  the  hands  of  dead  men  to  control  the  soil  of.  the  country  ;  and 
shall  we  without  inquiry,  without  a  judgment  of  our  own,  permit  the 
opinions  of  dead  men  to  control  the  thoughts  and  the  policy  of  the 
country?"  (p.  373). 

It  is  a  pity  to  take  the  conceit  out  of  a  gentleman  who  is  so  happy 
in  his  contempt  for  dead  men.  But  it  is  necessary  to  tell  him  that 
this  is  not  merely  an  impious  violation  of  the  fifth  commandment, 
but  an  utterance  void  of  all  reason  and  sense.  It  is  a  bald  absurdity 
to  say  that  we  refuse  to  allow  dead  men's  hands  to  cultivate  and  use 
the  soil ;  for  the  hands  of  dead  men  were  never  offered  to  us  for  that 
purpose.  If  it  be  meant  to  say  that  our  right  in  the  soil  is  not  defined, 
and  our  use  of  it  regulated  by  the  laws,  customs,  conveyances,  and 
testamentary  writings  of  dead  men,  then  the  writer  does  not  at  all 
know  what  he  is  talking  about ;  for  in  that  sense  the  soil  is  controlled 
by  dead  men.  Precisely  the  same  is  true  of  public  affairs.  While 
dead  men  do  not  vote  at  elections,  or  collect  taxes,  or  fight  in  the 
army,  or  sit  in  the  courts,  yet  their  decisions,  customs,  opinions,  tra 
ditions,  and  enactments  define  the  limits  of  power,  protect  the  liberty, 
regulate  the  policy,  and  control  the  thought  of  the  country  upon  all 
subjects,  religious,  moral,  and  legal,  as  effectually  as  if  they  were  still 
alive.  Without  this  control,  society  would  go  all  to  pieces  in  an  hour. 
Without  it  we  could  have  neither  church  nor  state,  nor  family  nor  social 
existence.  We  must  be  so  governed  ;  and  it  is  the  mere  drivel  of 
communism  to  say,  "We  refuse." 

Why  may  not  a  custom  like  this  become  binding  as  a  law  ?  Con 
gress,  in  December,  1875,  declared  that  it  was  binding  law,  which  could 
not  be  disregarded  without  bringing  our  free  institutions  into  great 


POLITICAL  ESSAYS  AND  LETTERS.  395 

danger  ;  therefore,  it  ought  to  be  strictly  adhered  to,  and  all  the  peo 
ple  said,  Amen  !  But  Mr.  Boutwell  considers  this  a  mere  notion, 
supported  by  nothing  better  than  rhetoric.  Let  him  and  his  disci 
ples  reflect  on  it  a  little  further,  and  see  if  they  are  not  mistaken. 

It  is  a  principle  of  universal  jurisprudence,  which  prevails  in  every 
civilized  country,  that  a  rule  of  public  or  private  conduct  spontane 
ously  adopted  and  continuously  observed,  becomes  the  law  of  the  subject 
to  which  it  relates,  and  is  perfectly  binding  on  the  conscience  of  mag 
istrate  and  people,  provided  it  be  reasonable  and  just  in  itself,  notori 
ously  practiced,  of  long  standing,  generally  acquiesced  in,  uniform 
in  its  operation,  uninterrupted  in  its  course,  and  not  in  conflict  with 
any  law  of  paramount  obligation.  Such  a  custom  is,  always  and 
everywhere,  held  to  be  especially  sacred  when  it  is  intended  and 
used  as  a  restriction  upon  political  power  or  a  safeguard  to  civil 
liberty. 

That  the  two-term  rule  is  coeval  with  the  Government,  consistent 
with  the  Constitution,  notorious,  uniform,  uninterrupted,  and  unop 
posed  for  nearly  a  century,  is,  as  matter  of  fact,  undenied  and  undeni 
able.  It  has,  therefore,  all  the  requisites  of  a  binding  law,  unless  its 
opponents  can  show  it  to  be  intrinsically  an  unreasonable  or  bad  rule. 
But  I  affirm  that  the  custom  is  salutary,  wholesome,  and  good  ; 
and  this  I  can  prove  to  the  hearts'  content  of  all  third -termers,  by 
their  own  spokesman,  Mr.  Boutwell  himself. 

He  opens  his  article  thus  :  "In  politics,  morals,  and  law,  there  is 
a  field  for  presumption."  If  he  had  been  willing  to  "talk  less  in 
King  Cambyses'  vein,"  he  would  have  said  that  in  those  sciences,  as 
in  all  others,  a  truth  may  be  shown  by  presumptive  as  well  as  by  di 
rect  evidence.  What,  then,  are  we  to  presume  concerning  the  custom' 
in  question  when  we  look  at  its  origin  and  history  ?  Begun  and  car 
ried  out  by  the  foremost  men  in  the  world,  it  was  accepted  from  the 
first,  and  upheld  to  the  last,  by  the  collective  wisdom  of  the  whole 
nation.  Does  not  this  raise  a  presumption — too  strong  to  be  resisted 
by  any  sensible  man — that  the  rule  is  just,  proper,  and  necessary  ? 

But,  added  to  this,  I  can  produce  Mr.  BoutwelFs  positive  testimo 
ny.  I  am  aware  that  a  cause  is  not  logically  lost  because  one  of  its  de 
fenders  contradicts  himself  when  he  speaks  upon  it.  But,  where  the 
authors  of  a  new  political  scheme  put  forward  one  of  their  number  to 
reconcile  its  opponents  by  displaying  its  merits,  and  the  advocate  ad 
mits  that  it  has  no  merits,  it  is  perfectly  fair  to  take  him  at  his  word. 
The  confession  in  this  case  is  none  the  less  useful  because  it  is  grudg 
ingly  made  in  little  pieces  which  lie  about,  here  and  there,  in  mere 
confusion.  It  is  vexatious  to  pick  out  these  fragmentary  revelations, 
but  we  must  take  the  trouble.  Like  an  unwilling  witness  under  press 
ure  of  his  conscience,  the  truth  oozes  out  of  him  drop  by  drop,  and 
we  must  patiently  catch  it  as  it  comes. 


396  POLITICAL  ESSAYS  AND  LETTERS. 

He  says,  totidem  verbis  (on  p.  376),  that  the  authorities  in  favor 
of  the  rule  are  good  ;  that  the  "experience  of  Europe  gave  rise  to  an 
opinion  in  America  that  it  was  dangerous  to  permit  the  chief  mag 
istrate  to  remain  in  office  for  a  long  time,"  and  then  admits  that 
"  when  there  was  no  trustworthy  history  either  for  warning  or  exam 
ple,  except  that  of  ancient  Rome  and  the  history  of  the  mediaeval  and 
feudal  states  of  Europe,  the  argument  [to  wit,  the  argument  which 
proves  the  rule  to  be  necessary]  was  not  bad."  Elsewhere  (p.  375)  he 
discloses  his  knowledge  that  the  argument  against  a  third  term  at 
that  time,  instead  of  being  a  bad  one,  was  good  enough  to  make  Wash 
ington  and  his  compatriots  determine  to  prevent  it  by  his  example, 
and  thus  save  the  Government  from  subversion.  Does  Mr.  Boutwell 
assert  that  anything  in  the  history  of  the  world  has  occurred  since  then 
which  ought  to  weaken  our  faith  in  the  value  and  importance  of  the 
rule  ?  Certainly  not ;  on  the  contrary,  he  confesses  that  "  Washing 
ton's  example  was  set  off  and  made  more  impressive  by  the  phenom 
enon  of  a  Corsican  corporal,  passing  as  it  were  at  a  bound  from  the 
ruins  of  a  republic  to  the  throne  of  an  empire "  (p.  376)  ;  and  he 
might  have  added  that  in  the  same  country,  at  a  later  period,  another 
republic  was  ruined  in  a  way  which  made  the  warning  still  more  strik 
ing.  But  Mr.  Boutwell's  confession  is  fuller  yet.  In  the  following 
passage  (p.  375)  he  makes  a  tolerably  clean  breast  of  it.  Speaking  of 
the  "general  disinclination  of  the  American  public  mind  to  the  elec 
tion  of  the  same  person  to  the  presidency  a  third  time,"  he  goes  on  to 
say  :  ' ( It  is,  however,  as  old  as  the  Government.  It  had  its  roots  in 
the  experience  of  the  colonists.  In  Europe  hereditary  power  had  fos 
tered  standing  armies,  and  standing  armies  had  maintained  hereditary 
power.  Both  were  the  enemies  of  personal  liberty  and  popular  rights. 
It  was  the  purpose  of  the  founders  of  our  Government  to  render 
standing  armies  unnecessary,  and  the  possession  of  hereditary  power 
impossible.  If  the  experience  of  a  century  is  an  adequate  test,  the 
end  they  sought  has  been  attained.  They  had  observed,  also,  that  the 
possession  of  power,  by  virtue  of  office,  for  unlimited  periods  of  time, 
tended  to  the  establishment  of  dynastic  systems,  and  to  their  recogni 
tion  by  the  people.  Hence,  provision  was  made  in  all  our  Constitu 
tions,  State  and  national,  for  frequent  elections  in  the  legislative  and 
executive  departments  of  Government." 

This  certainly  is  as  plain  an  acknowledgment  as  can  be  made  that 
continued  re-election  is  dangerous  to  personal  liberty  and  popular 
rights,  and  that  the  two-term  limitation,  or  something  equivalent, 
is  necessary  to  save  the  Government  from  subversion  by  standing 
armies  and  hereditary  power.  The  rule  we  contend  for  is,  therefore, 
wise  and  salutary,  the  third- termers  themselves  being  judges.  Not 
only  is  that  settled  :  it  is  undeniably  fixed  that  the  custom  has  all  the 
other  requisites  of  a  good  and  valid  custom — age,  notoriety,  constant 


POLITICAL  ESSAYS  AND  LETTERS.  397 

observance,  and  consistency  with,  previous  regulations.  For  those 
reasons  it  is  and  must  be  a  valid  law,  technically  as  well  as  morally 
binding  on  the  country.  No  American  citizen  who  obliges  himself, 
by  oath  or  otherwise,  to  obey  the  laws,  can  honorably  violate  this 
rule  or  counsel  opposition  to  it,  for  it  is  not  only  law,  but  fundament 
al  law — lex  legum — a  law  of  laws — confessedly  necessary  to  preserve 
all  others  from  destruction. 

Mr.  Boutwell  begs  the  whole  question  when  he  says  that  the  ap 
prehension  so  universally  felt  of  great  danger  from  repeated  re-elections 
of  the  same  person  did  not  lead  the  founders  of  the  republic  to  the 
adoption  of  a  system  which  limited  the  right.  It  did  lead  them  to 
that  very  thing.  The  written  Constitution  is  silent,  to  be  sure,  but, 
on  the  earliest  occasion  after  it  went  into  operation,  the  omission  was 
supplied  by  a  custom  which  then  became,  and  now  is,  a  part  of  our 
system  as  much  as  anything  else  it  contains. 

Without  summing  up  Mr.  Boutwell's  confessions,  it  will  be  plainly 
seen  by  every  reader  that  he  has  yielded  all  points.  The  third-termers 
put  up  the  best  man  they  could  find  to  defend  them,  and  he  honestly 
but  reluctantly  gives  away  their  case.  It  requires  some  boldness  to 
ask  for  a  judgment  after  that.  But  Mr.  Boutwell's  courage  is  not 
wanting  in  the  last  extremity.  The  two-term  rule  may  be  right  in 
law  and  morals,  but  he  despises  it ;  it  may  be  strong,  but  his  determi 
nation  to  break  it  down  is  irrepressible. 

One  argument,  totally  apart  from  the  merits  of  the  question,  is 
used  with  immense  success  by  Mr.  Boutwell  and  all  third-termers  who 
have  written  or  spoken  on  the  subject.  Not  one  of  them  neglects  to 
urge  with  all  his  might  that  opposition  to  a  third  term  and  General 
Grant  is  a  sentiment  almost  if  not  quite  universal  with  Democrats. 
This  converts  our  rancorous  enemies  by  the  score  :  an  appeal  to  blind 
partisan  malice  is  never  made  in  vain.  In  this  discussion  and  for  the 
present  purposes  of  strong  government  it  is  the  most  irresistible  of  all 
arguments,  more  potent  than  Cicero's  best  oration,  more  effective  than 
all  the  logic  of  Aristotle,  more  powerful  than  the  eloquence  "  that  shook 
the  arsenal  and  fulmined  over  Greece." 

"We  have  no  answer  to  this  charge  of  democracy.  With  all  humil 
ity  we  plead  guilty,  and  throw  ourselves  on  the  mercy  of  the  third- 
termers.  We  are  Democrats.  We  believe  in  the  Constitution,  and 
in  the  sanctity  of  an  oath  to  support  it ;  in  the  traditions  of  the  fa 
thers,  and  the  principles  of  free  government  as  settled  by  them.  We 
have  held  fast  to  this  faith.  We  never  surrendered  or  sold  or  gave  up 
our  heritage.  When  it  was  stolen  from  us  we  cried  out  upon  the  rob 
bery,  and  reclaimed  our  rights  as  soon  as  reclamation  was  possible. 
In  the  courts  we  struggled  with  our  utmost  strength  for  the  restora 
tion  of  trial  by  jury  and  the  privilege  of  habeas  corpus  ;  on  the  hust 
ings,  in  popular  conventions,  and  in  legislative  assemblies  we  protested 


398  POLITICAL  ESSAYS  AND  LETTERS. 

against  the  domination  of  carpet-bag  thieves,  and  exposed  remorse 
lessly  the  dishonest  measures  by  which  we  saw  the  public  treasury 
plundered.  We  thought  it  a  good  tradition  of  the  fathers  that  the 
military  power  should  be  subordinate  to  the  civil  authority ;  and, 
when  we  saw  elections  carried  by  the  bayonet,  Legislatures  forcibly 
tumbled  out  of  their  seats,  and  the  basest  scoundrels  in  the  country 
placed  by  brute  force  in  the  offices  to  which  honest  men  had  been 
elected,  our  sense  of  right  and  justice  was  shocked  beyond  expression. 
We  thought  the  right  of  the  States  to  elect  their  own  officers  and  their 
own  representatives  in  Congress  by  the  free  suffrages  of  their  own  peo 
ple  was  clear  as  the  plainest  constitutional  law  could  make  it.  We 
therefore  looked  with  loathing  on  the  systematic  violation  of  this  great 
right,  carried  on  for  years  by  the  Federal  Administration ;  and  none 
of  us  could  be  reconciled  to  the  great  swindle  of  1876  by  which  the 
whole  nation  was  basely  cheated. 

This  is  what  democracy  has  led  us  to.  Doubtless  we  are  great  sin 
ners  in  the  eyes  of  Mr.  Boutwell.  Not  to  have  given  up  these  princi 
ples  is  a  crime  for  which  he  can  not  forgive  us.  But  he  ought  not  to 
blame  us  too  bitterly.  We  could  not  help  it.  We  were  brought  up 
to  revere  the  founders  of  the  republic,  and  to  obey  the  laws  and  cus 
toms  which  they  handed  down  to  us.  Instinctively  and  by  habit  we 
loved  free  institutions,  honest  observance  of  oaths,  and  good  faith  in 
the  execution  of  public  trusts.  In  all  this  Mr.  Boutwell  differs  from 
us  toto  ccelo.  But  can  he  not  make  some  allowance  for  our  prejudices 
against  fraud,  perjury,  and  corruption,  unreasonable  as  those  preju 
dices  may  seem  to  his  superior  wisdom  ?  It  is  hoped  also  that  he  will 
be  somewhat  conciliated  when  he  recollects  that  our  delusions  are  en 
couraged  by  a  very  general  concurrence  in  them :  the  white  men  of 
the  Union  by  a  million  majority  expressed  their  approbation  of  our 
views  at  the  last  presidential  election,  and  even  negroes  by  the  hun 
dred  thousand  refused  to  condemn  them.  Moreover,  it  is  not  true 
that  Democrats  alone  are  opposed  to  a  third  term.  Kepublicans— a 
large  majority — not  knaves  and  cowards,  and  not  "  metallic  calves," 
but  the  best  men  in  the  party — are  as  much  opposed  to  it  as  we  are. 
This  consideration  should  silence  Mr.  Boutwell's  mere  partisan  rheto 
ric,  disarm  his  wrath  at  once,  and  "check  his  thunder  in  mid-volley." 

He  strikes  another  blow  which  hits  us  hard.  He  says,  in  effect, 
that  the  old  Government  is  so  battered  up  that  no  respect  ought  now 
to  be  paid  to  any  principle  of  its  founders.  I  quote  his  words  (p.  273)  : 
"  We  have  changed,  indeed  in  some  particulars  we  have  annihilated, 
the  Constitution  of  Washington,  the  Constitution  of  the  Fathers.  .  .  . 
And  is  the  unwritten  law  more  sacred  ?  May  the  people  annul  the 
written  law  of  the  fathers,  and  still  be  perpetually  bound  ~by  their  tra 
ditions?"  * 

This  is  extremely  well  put,  "  with  good  emphasis  and  good  discre- 


POLITICAL  ESSAYS  AND  LETTERS.  399 

tion."  I  am  compelled  to  admit  that  they  (Mr.  Boutwell  and  his 
political  associates)  have  annulled  the  Constitution,  not  in  some,  but 
in  all  particulars.  No  line  or  letter  of  it  has  escaped  their  destructive 
hands.  Every  right  of  the  States  and  all  personal  liberty  have  been 
wantonly  outraged.  Trial  by  jury,  habeas  qorpus,  free  speech,  the 
elective  franchise,  everything  that  tended  to  promote  the  great  objects 
for  which  the  Constitution  was  made,  were  trodden  down.  The  mili 
tary  was  placed  above  the  civil  authority,  and  the  power  continues  to 
be  claimed  for  standing  armies  to  "shed  the  blood  of  war  in. peace." 
To  nullify  the  most  important  part  of  our  great  charter,  a  bill  of  pains 
and  penalties  against  ten  States  and  eight  millions  of  people  was  forci 
bly  injected  into  the  bowels  of  the  Constitution  itself,  and  there  it  lies 
to  this  day,  side  by  side  with  the  provision  which  forbids  its  existence. 
Certainly  I  agree  with  Mr.  Boutwell  that  the  written  instrument  by 
which  our  fathers  sought  to  secure  the  blessings  of  liberty  to  them 
selves  and  their  posterity  has  been  wholly  set  at  naught,  and  his  tone 
of  triumphant  interrogation  is  not  out  of  place  when  he  asks,  ' '  Is  the 
unwritten  law  more  sacred  ?  "  Assuredly  it  is  not.  A  conscience 
which  is  hardy  enough  to  spurn  the  restraints  of  the  written  Consti 
tution  need  not  affect  any  remorse  for  refusing  to  accept  a  tradition. 
Having  swallowed  that  camel,  it  is  but  the  folly  of  the  Pharisee  to 
strain  at  this  gnat. 

But  Mr.  Boutwell,  being  a  charitable  and  fair  man,  will,  I  am  sure, 
excuse  us  for  adhering  to  the  tradition,  though  it  be  connected  with 
the  Constitution  which  his  party  has  broken  and  dishonored.  We  see 
the  whole  subject  from  another  point  of  view.  We  expect  the  restora 
tion  of  popular  liberty  ;  we  hope  soon  to  replace  our  institutions  upon 
the  firm  foundation  which  our  fathers  laid.  We  have  already  made 
much  progress.  Many  of  our  violated  rights  have  been  vindicated  in 
the  courts  ;  oppressors  have  been  scourged  back  into  private  life  ;  the 
thieves  who  ruled  us  for  their  pleasure  and  plundered  us  for  their 
profit  are  on  the  run  ;  a  majority  of  the  States,  both  Houses  of  Con 
gress,  and  the  unbroken  heart  of  the  nation  are  with  us  ;  and  but  for 
the  atrocious  fraud  of  1876  no  remnant  of  Asiatic  despotism  would 
disgrace  this  country  now.  The  argument  that  the  two-term  rule  is 
useless  to  uphold  institutions  already  overthrown  will  become  plainly 
inapplicable  when  the  structure  is  completely  rebuilt.  When  the  ship 
of  state  is  again  put  on  her  constitutional  tack,  this  traditionary  rule 
of  navigation  will  be  as  necessary  as  ever  to  make  her  course  true  and 
her  progress  safe. 

There  is  another  reason  why  we  can  not  afford  to  abandon  any 
custom  which  favors  civil  liberty,  even  if  the  written  Constitution  be 
considered  as  hopelessly  abolished.  Our  fathers  were  freemen  before 
the  Constitution  ;  that  instrument  defined  certain  pre-existing  rights 
established  by  custom,  and  provided  an  organization  for  defending 


400  POLITICAL  ESSAYS  AND  LETTERS. 

them.  Suppose  the  definition  to  be  obliterated  and  the  defenses  thrown 
down,  would  that  make  us  slaves  ?  No ;  in  that  case  we  would  fall 
back  on  the  unwritten  law.  We  would  stand  upon  the  colonial  cus 
toms,  or  seek  protection  under  the  common  law,  tracing  it,  if  need  be, 
to  the  reign  of  Edward  the  Confessor  or  Alfred  the  Great,  or  finding 
its  sources  in  the  still  older  customs  of  our  German  ancestors.  If  all 
this  fails,  we  will  appeal  to  the  great  unwritten  law  of  Nature — the 
law  that  Hooker  speaks  of  when  he  says,  "Her  seat  is  in  the  bosom 
of  God,  and  her  voice  is  the  harmony  of  the  world." 

Americans  who  are  true  to  themselves  and  one  another  can  not 
afford  to  give  up  a  custom  which  is  "part  of  our  free  institutions," 
merely  because  previous  wrongs  have  deprived  them  of  other  parts. 
On  the  contrary,  the  losses  already  sustained  should  make  us  cling  all 
the  more  closely  to  what  is  left.  This  excuse  of  Mr.  Boutwell  for  his 
proposed  violation  of  the  two-term  rule  will  pass  for  a  good  one  only 
with  men  who  are  hostile  to  all  free  institutions. 

Here  rises  the  most  important  of  all  questions  :  What  is  the  ulti 
mate  object  of  the  third-termers  ?  Why  these  desperate  efforts  to  push 
on  a  third-term  candidate  in  the  face  of  an  opposing  sentiment  ex 
pressed  by  all  parties,  manifesting  itself  in  all  places,  and  certain  to 
be  felt  at  the  polls  if  the  election  be  a  free  one  ?  Friends  of  republican 
government,  who  respect  the  popular  will,  could  not  act  thus.  Even 
demagogues,  who  want  votes  as  a  mere  means  of  getting  offices  and 
jobs,  do  not  usually  endanger  their  own  success  by  dragooning  the 
common  file  of  their  supporters.  Without  the  principle  of  patriots, 
without  the  prudence  of  partisans,  the  third-term  men  must  have 
some  purpose  inconsistent  with  both.  The  general  belief  is,  that  they 
mean  to  force  the  nomination  of  Grant,  then  coerce  a  false  count  of 
the  votes,  and  finally  subjugate  the  nation  to  their  personal  rule.  If 
this  prevailing  opinion  be  erroneous  I  am  not  responsible,  for  I  have 
been  among  the  last  to  adopt  it.  But  there  certainly  is  some  evidence 
tending  to  show  that  the  designs  of  the  Grant  men  are  at  enmity  with 
existing  institutions,  and  so  far  revolutionary  that  they  would  be  called 
treasonable  if  treason  here,  as  in  England,  consisted  in  seeking  to  com 
pass  the  death  of  the  Government. 

At  a  very  early  period  in  our  history  the  enemies  of  republican 
principles  were  thoroughly  equipped,  and  entered  actively  upon  the 
struggle  for  supremacy.  Some  of  them  got  into  the  Convention  which 
framed  the  Constitution.  At  their  head  was  Hamilton,  who  laid  be 
fore  the  body  their  whole  plan  for  a  central  government,  which,  if 
adopted,  would  have  completely  extirpated  the  rights  of  the  States 
and  the  liberties  of  the  people  :  a  Chief  Executive  for  life,  unimpeach 
able  for  any  misconduct ;  a  Senate  for  life  ;  a  triennial  House  of  As 
sembly  ;  a  Federal  judiciary  "  for  the  determination  of  all  matters  of 
general  concern  "  ;  the  Governors  of  the  States  to  be  appointed  by  the 


POLITICAL  ESSAYS  AND  LETTERS.  401 

President.  Of  such  a  government,  the  tyranny  and  corruption  must 
have  become  perfectly  unendurable  if  administered,  as  it  was  expected 
to  be,  by  the  men  who  proposed  it ;  and  doubtless  it  would,  in  a  very 
short  time,  have  led  to  a  monarchy  in  name  as  well  as  in  substance. 
But  the  Hamiltonian  plan  was  defeated,  and  under  the  auspices  of 
Washington,  Madison,  and  their  compatriots  the  present  system  was 
framed,  by  which  certain  powers,  specifically  enumerated,  are  bestowed 
on  the  General  Government,  while  all  others  are  expressly  reserved  to 
the  States  and  the  people  ;  and  this  system  is  to  be  administered  by 
agents  of  the  people's  choice,  strictly  accountable,  subject  to  frequent 
rotation,  and  sworn  to  keep  within  the  limits  of  their  legal  authority. 
This  government,  so  simple  and  so  clear,  so  definite  in  all  its  arrange 
ments  of  power,  and  so  guarded  against  abuse,  was  hailed  at  home  and 
abroad  as  the  best  result  of  political  wisdom  that  the  world  ever  saw. 
I  devoutly  believe  that  the  estimate  of  its  friends  was  right,  but  I  have 
no  eulogy  to  make  on  it  now.  I  merely  claim  that  our  obedience  to 
it  is  due  as  a  moral  necessity.  If  a  sworn  officer  willfully  violates  it, 
he  is  guilty  of  perjury ;  if  its  commands  be  habitually  disregarded, 
the  nation  is  politically  ruined,  and  the  people  are  defrauded  of  their 
rights. 

But  from  the  very  first  it  had  enemies,  who  tried  to  subvert  it 
and  substitute  in  its  place  the  reign  of  arbitrary  power.  There  has 
always  been  an  unprincipled  faction,  composed  of  persons  who  tried 
to  rid  themselves  of  the  wholesome  limitations  which  protected  the 
equal  rights  of  the  States  and  the  people.  By  frequent  changes  of 
name  and  the  assumption  of  new  shapes,  by  appeals  to  the  baser 
passions,  by  combinations  of  special  interests,  by  plausible  but  false 
interpretations  of  the  fundamental  law,  by  adroitly  taking  advan 
tage  of  accidental  circumstances,  they  have  often  succeeded  in 
"drawing  much  people  after  them" — people  who  really  loved  free 
institutions,  and  had  no  intention  to  destroy  the  Government  or 
depart  from  the  traditions  of  the  fathers.  "When  their  designs  be 
came  known,  the  honest  portion  of  their  followers  have  uniformly 
fallen  away  from  them.  Perhaps  no  instance  of  this  is  more  strik 
ing  than  the  direct  and  positive  refusal  of  the  great  mass  of  the 
Republican  party,  in  1876,  to  endure  the  nomination  of  General 
Grant  for  a  third  term. 

That  the  present  movement  to  that  end  means  simply  a  conspir 
acy  to  wipe  out  the  Constitution  once  for  all,  and  have  done  with 
its  restraints  upon  arbitrary  power,  is  proved  in  so  many  ways  that 
it  admits  of  no  doubt.  It  is  publicly  urged  by  all  its  friends  for 
the  sole  reason  that  General  Grant  is  a  strong  man.  In  the  cases  of 
Caesar,  Cromwell,  and  both  the  Napoleons,  strength  was  the  qual 
ity  for  which  they  were  elevated  to  absolute  power.  It  is  the  might 
of  the  ruler  that  overcomes  the  -right  of  the  people  whenever  a  re- 

26 


402  POLITICAL  ESSAYS  AND  LETTERS. 

public  is  to  be  strangled.  Strength  that  governs  with  a  rod  of  iron 
is  always  the  recommendation  of  one  who  is  to  be  made  a  monarch, 
insomuch  that  the  word  "  king  "  (Koenig)  signifies,  in  the  language 
we  take  it  from,  exactly  what  General  Grant's  adulators  habitually 
call  him — the  strong  man. 

But  the  strong-government  idea  has  been  set  forth  by  its  pro 
jectors  in  various  authorized  publications,  manifestly  intended  to 
prepare  the  minds  of  the  American  people  for  the  advent  of  des 
potism.  Before  Napoleon  mounted  the  throne,  certain  well-remem 
bered  articles  appeared  in  the  "  Moniteur  "  to  foreshadow  the  empire 
that  was  coming,  to  prove  that  a  republic  was  too  weak  to  be  com 
patible  with  the  interests  of  France,  and  to  show  that  nothing  would 
do.  but  the  strong  government  of  one  strong  man.  Precisely  simi 
lar  were  the  approaches  of  the  other  Bonaparte  to  absolute  power. 
Here  we  have  almost  a  repetition  of  those  French  articles.  One  of 
these,  anonymous,  but  printed  in  a  magazine  of  high  authority,  de 
scribes  the  Constitution  of  the  United  States  as  an  effete  system, 
adjudges  State  sovereignty  to  be  treason,  declares  the  masses  of 
the  Northern  Democracy  unfit  for  self-government,  anticipates  that 
the  South  will  cease  to  be  formidable  after  the  next  census,  and  then 
gives  a  picture  of  the  good  time  coming,  when  a  central  Government, 
with  the  States  under  its  feet  and  the  people  at  its  mercy,  shall  exer 
cise  a  controlling  supervision  over  all  elections,  and  regulate  all  domes 
tic  subjects  down  to  marriage  and  divorce.  What  sort  of  a  head  this 
strong  Government  shall  have,  or  how  he  shall  be  called,  is  not  dis 
closed  ;  but  we  are  told  to  look  for  a  change  in  the  mode  of  choosing 
him,  the  present  plan  being  antiquated  and  clumsy. 

But  the  most  alarming  evidence  I  have  seen  that  the  friends  of 
a  "  third  term  and  General  Grant "  are  plotting  the  overthrow  of 
the  Constitution  is  in  Mr.  Boutwell's  own  article.  He  knew  when 
he  wrote  it  that  designs  utterly  hostile  to  our  free  institutions  were 
imputed  to  him,  his  faction,  and  his  candidate  ;  that  the  accusation 
was  believed  by  very  many  of  the  most  influential  men  in  the  Ee- 
publican  party  ;  and  that  it  was  almost  universally  thought  to  be 
true  bj  the  Democrats.  He  could  not  help  but  see,  in  the  paper 
which  he  was  undertaking  to  answer,  that  the  strongest  objection 
to  the  movement  for  Grant  was  its  anti-constitutional  purpose.  He 
was  also  fully  aware  that  nineteen  twentieths  of  the  American  people 
are  true  to  the  Government  of  their  fathers,  which  they  desire  to  see 
honestly  administered,  and  are  totally  opposed  to  any  kind  of  personal 
rule  stronger  than  the  laws.  Yet  Mr.  Boutwell  puts  in  no  word  of 
denial.  Why  does  he  stand  mute  under  a  charge  which  so  seriously 
affects,  not  only  the  political,  but  the  moral  integrity  of  himself  and 
his  associates  ?  No  sane  man  can  hesitate  for  a  moment  to  interpret 
this  silence  as  a  consciousness  of  guilt. 


POLITICAL  ESSA  YS  AND  LETTERS.  403 

But,  besides  this  dumb  eloquence,  there  is  something  more  in  that 
same  paper. 

In  all  countries  and  in  all  ages  it  is  the  uncontrollable  impulse 
of  public  oppressors  to  call  every  man  a  traitor  who  is  not  willing 
to  be  a  slave.  In  the  eyes  of  the  usurping  tyrant  and  his  sycophant 
ic  flatterers  the  most  odious  crime  that  can  be  committed  is  the 
assertion  of  his  legal  rights  by  a  freeman.  This  crime  Mr.  Bout- 
well  charges  upon  the  Democracy,  and  gloats  over  the  punishment 
they  will  get  for  it.  He  says  (p.  373)  that  "  the  spirit  of  rebellion, 
of  resistance  to  the  Constitution,  is  manifested  by  a  large  class  of 
citizens.  These  citizens,  without  exception,  are  Democrats,  and  they 
receive  aid  and  encouragement  from  the  Democratic  party." 

Of  course,  I  will  not  vouch  for  the  absolute  perfection  of  every 
individual  who  claims  to  be  a  Democrat.  But  that  Democrats,  as 
a  body,  or  by  party  concert,  have  resisted  the  Constitution  in  any 
manner,  or  that  they  have  not  submitted  even  to  the  unconstitu 
tional  tyranny  of  the  Federal  Government  with  entire  passiveness, 
is  a  falsehood  so  vile,  so  gross,  and  so  palpable  that  I  will  not  be 
lieve  Mr.  Boutwell  meant  to  assert  it.  What  he  did  mean  was  to 
say  that  we  have  claimed  our  just  rights  by  legal  and  peaceful  ap 
peals  to  the  public  conscience,  in  the  courts  and  on  the  rostrum,  at 
the  polls,  and  through  the  press  ;  and  he  but  speaks  after  his  kind 
when  he  calls  this  the  "spirit  of  rebellion,"  for,  according  to  his 
theory,  lawful  opposition  to  unlawful  power  is  always  constructive 
rebellion.  He  is  consistent  with  his  creed  when  he  warns  us  that 
this  spirit  shall  be  wholly  extinguished,  and  that  Democrats  for 
indulging  in  it  shall  be  remitted  to  a  state  of  abject  slavery,  and 
deprived  of  all  right  to  control  their  own  affairs,  either  political  or 
private  ;  and,  to  that  end,  all  traditionary  notions  of  liberty,  equal 
ity,  and  fraternity  are  to  be  set  aside.  "It  is  the  purpose  of  the 
Republican  party,"  says  Mr.  Boutwell  (page  373),  "to  suppress  that 
spirit,  to  render  it  poiverless  absolutely,  both  in  personal  and  public 
affairs,  and  it  may  happen  that  in  accomplishing  this  result  the 
example  of  Washington  and  the  tradition  of  the  fathers  will  be  dis 
regarded.''  While  I  do  not  think  that  a  majority  of  the  Republi 
can  party  would  assist  for  one  moment  in  carrying  out  this  brutal 
threat,  Mr.  Boutwell  is  ample  authority  for  the  belief  that  the  Grant 
leaders  are  not  only  insolent  enough  to  utter  it,  but  base  enough  to 
execute  it,  if  they  ever  get  a  chance. 

It  is  plain  enough  what  prompts  them  to  these  desperate  meas 
ures.  When  the  elective  franchise  was  given  to  the  negro  they 
thought  they  had  legalized  a  sure  mode  of  stuffing  the  ballot-boxes, 
and,  so  sustained,  strong  government  promised  to  itself  a  life  with 
out  end.  But  in  the  course  of  time  the  negroes  ceased  to  stuff,  and 
some  of  them  began  to  vote.  This  was  so  contrary  to  all  previous 


404:  POLITICAL  ESSAYS  AND  LETTERS. 

calculations,  that  the  friends  of  strong  government  could  not  realize 
it ;  they  thought  it  must  be  caused  by  some  mysterious  application 
of  physical  force.  To  this  day  Mr.  Boutwell  is  unable  to  compre 
hend  the  possibility  of  a  free  negro  Toting  of  his  own  head  against 
a  carpet-bagger  who  has  robbed  him,  against  a  Freedman's  Bank 
that  has  swindled  him  out  of  his  earnings,  or  against  a  scurvy  poli 
tician  who  has  cheated  him  by  false  promises  of  forty  acres  and  a 
mule.  Therefore,  he  believes  in  the  chimera  of  a  bulldozer  as  much 
as  Cotton  Mather  believed  in  witchcraft,  and  swallows  as  greedily 
the  false  and  unreasonable  evidence  which  feeds  his  credulity.  He 
declares  in  this  article  that  in  the  Southern  States  "  any  number  of 
citizens  are  as  a  public  policy  of  communities  and  States  deprived  of 
their  civil  rights  "  ;  that  offices  are  held  there,  and  power  wielded, 
"  through  proceedings  that  are  systematically  tainted  with  fraud  or 
crimsoned  with  innocent  blood"  ;  that  "one  vote  of  a  white  citizen 
in  South  Carolina  is,  as  a  fact  in  government,  equal  to  three  in  Mas 
sachusetts,  New  York,  or  Illinois  "  ;  that  there  are  persons  in  Con 
gress  who  have  no  right  to  their  seats,  "  and  these  persons  consti 
tute  the,  majority  in  both  branches."  These  monstrous  outrages 
upon  the  known  truth  admit  of  one  excuse  and  only  one — Mr.  Bout- 
well  believed  them. 

But  the  sincerity  of  his  belief  in  these  false  statements  is  no 
excuse  for  the  pretense  he  makes  of  honest  indignation.  That  is  a 
sham,  and  he  knows  it.  He  and  his  colldborateurs  in  the  strong- 
government  enterprise  (including  the  strong  man  himself)  have  no 
conscientious  objections  to  false  or  forced  elections.  They  have  no 
respect  whatever  for  the  right  of  the  people  to  choose  their  own 
officers,  State  or  national.  The  strength  for  which  they  laud  their 
chief  so  extravagantly  was  never  exhibited  during  his  presidency, 
except  in  coercing  voters,  suppressing  true  returns,  or  otherwise 
defeating  the  legal  expression  of  the  popular  will.  Mr.  Boutwell 
is,  therefore,  in  no  condition  to  speak  on  this  subject  as  an  accuser 
of  others ;  the  beam  in  his  own  eye  disqualifies  him  to  hunt  for 
motes  in  the  eye  of  his  brother.  Nor  could  he  do  General  Grant 
any  good  even  by  showing  that  elections  are  now  unfairly  con 
ducted.  We  desire,  above  all  things,  to  have  a  free  poll  and  a  fair 
count,  and  we  are  much  afraid  that  we  will  be  permanently  deprived 
of  our  right ;  but  we  do  not  look  to  Grant  for  redress  or  remedy. 
We  do  not  trust  the  arch  enemy  of  honest  elections  to  purify  the 
ballot-box;  for  that  would  be  "casting  out  devils  by  Beelzebub, 
the  prince  of  devils." 

I  will  make  Mr.  Boutwell  a  proposition.  If  he  will  name  any  kind 
of  violence  or  intimidation  which  the  Grant  faction  have  not  used  to 
prevent  a  true  poll,  or  any  form  of  fraud  which  they  have  not  prac 
ticed  to  falsify  returns,  or  any  sort  of  cheating  in  the  count  which  they 


POLITICAL  ESSAYS  AND  LETTERS.  405 

have  not  resorted  to,  or  any  species  of  the  crimen  falsi  which  they 
have  not  perpetrated  as  a  means  of  swindling  the  majority ;  if  they 
have  not  filled  the  seats  of  Congress  with  impostors  whose  object  it 
was  to  misrepresent,  injure,  and  degrade  the  States  they  pretended  to 
come  from ;  if  they  did  not  falsely  procure  the  election  of  infamous 
men  to  every  kind  of  State  office,  or  when  defeated  put  them  in  pos 
session  and  maintain  them  there  by  force  of  arms ;  if  they  did  not 
in  1876  defeat  the  known  will  of  the  nation  by  a  most  stupendous 
swindle — if  Mr.  Boutwell  can  show  that  these  things  and  others  .like 
them  were  not  done  at  divers  times  and  places,  under  the  auspices  and 
with  the  approbation  of  General  Grant  and  those  friends  of  his  who 
are  now  pushing  him  for  a  third  election,  then  I  will  give  up  the 
whole  case  and  promise  to  vote  for  his  candidate.  There  !  he  has  a 
chance  to  make  one  vote,  without  the  risk  of  losing  his  own ;  for,  if 
he  fails,  I  will  not  ask  him  to  vote  my  ticket ;  I  will  merely  insist  that 
he  shall  not  hereafter  turn  up  the  whites  of  his  eyes  and  pretend  to  be 
wounded  in  his  virtuous  soul,  when  a  fugitive  carpet-bagger  tells  him 
how  he  had  to  drop  his  plunder  and  fly  for  his  crimes,  because  negroes 
were  bulldozed  at  the  South. 

General  Grant's  own  history  and  character  as  a  civilian  make  it 
certain  that  those  who  support  him  are  enemies  of  free  and  honest 
government.  These  third-termers  are  not  madmen.  They  have  tried 
Grant,  and  they  know  what  he  is  good  for.  Those  acts  of  deadly  hos 
tility  to  the  Constitution  which  distinguished  the  period  of  his  Ad 
ministration  they  expect  him  to  repeat.  Those  atrocious  corruptions 
which  made  it  the  golden  age  of  the  public  plunderer  they  look  for 
again.  I  affirm  that  they  intend  this,  not  because  they  have  said  so  in 
words,  but  because,  being  sane  men,  they  can  intend  nothing  else. 

Doubtless  he  is  a  strong  man — not  mentally  or  morally  strong — 
but  quite  strong  enough  with  an  army  at  his  back  to  spurn  the  re 
straints  of  law  and  break  over  the  Constitution.  It  took  a  strong  man 
to  make  such  governors,  and  judges,  and  treasurers,  and  legislators  as 
he  made  for  the  States,  and  to  hold  them  in  place  by  the  bayonet ;  to 
force  elections  against  the  will  of  the  electors,  and  to  inaugurate  a 
President  who  had  been  rejected  by  the  people. 

One  manifestation  of  his  strength  has  hardly  excited  so  much  ad 
miration  as  it  deserves  from  his  followers.  During  his  last  term  he 
took  from  the  Treasury,  in  flat  defiance  of  the  Constitution,  one  hun 
dred  thousand  dollars  in  addition  to  the  hundred  thousand  which  was 
his  legal  salary.  There  was  a  transaction  of  Caesar's  with  the  Roman 
treasury  not  dissimilar  to  this — and  Caesar  was  a  strong  man ;  but 
Grant,  more  than  Caesar,  showed  that  peculiar  contempt  of  law  which 
by  his  admirers  is  supposed  to  be  strength. 

Sometimes  they  tell  us  that  he  is  not  only  strong,  but  faithful. 
Eaithful  to  what  ?  To  his  own  breeches-pocket ;  to  the  rich  men  who 


406  POLITICAL  ESSA  YS  AND  LETTERS. 

made  him  presents ;  to  the  carpet-bag  thieves  whom  he  fastened  on 
the  Southern  States ;  to  the  corrupt  rings  that  supported  him  in  the 
North ;  to  the  returning  boards  who  forged  election-papers  to  suit 
him  ;  to  the  tools  of  the  vulgar  force  which  thrust  his  fraud  down  the. 
throat  of  the  nation — to  all  these  he  was  faithful  enough  ;  but  faithful 
to  the  Constitution  and  laws  he  never  was.  From  beginning  to  end 
of  his  Administration  he  was  treacherous  to  the  most  sacred  trust  that 
human  hands  can  hold. 

This  is  no  railing  accusation  against  General  Grant,  no  harsh  con 
struction  of  his  past  acts,  no  detraction  from  his  claim  to  a  certain 
degree  of  personal  respectability,  no  proof  that  as  a  despot  he  would 
not  do  as  well  as  another.  He  is  a  mere  soldier,  with  no  knowledge 
of  law  and  no  conception  of  the  purpose  for  which  civil  institutions 
are  made.  When  elected  President,  he  took  the  Government  on  his 
hands  as  a  mere  job  to  be  done  for  the  interests  of  those  who  employed 
and  paid  him,  without  caring  what  rights  of  other  persons  might  suf 
fer.  Horace's  description  of  a  military  chief  governing  strongly  in 
civil  affairs  has  never  in  modern  times  been  so  perfectly  realized  : 

"  Jura  negat  sibi  nata ;  nihil  non  arrogat  armis." 

He  did  not  stop  to  inquire  what  was  in  that  Constitution  which  he 
swore  to  preserve,  protect,  and  defend ;  if  he  had  taken  an  oath  to 
destroy  it,  his  hostility  would  have  been  neither  less  nor  greater.  If 
there  be  one  provision  of  the  Federal  compact  more  perfectly  clear 
than  any  of  the  others,  it  is  that  which  reserves  and  secures  to  the 
States  all  sovereign  authority,  jurisdiction,  and  powers,  except  what 
are  specifically  enumerated  and  expressly  given  to  the  General  Govern 
ment  ;  but,  clear  as  this  is,  General  Grant  never  could  see  it.  When 
a  politician  came  to  him  (especially  if  he  came  with  a  present  in  his 
hand),  and  told  him  that  the  States  had  no  rights,  and  the  doctrine 
of  State  sovereignty  was  mere  treason,  he  believed  it  firmly  and  acted 
accordingly.  He  himself  has  furnished  conclusive  proof  that,  when 
he  stretched  forth  his  rapacious  hand  and  took  from  the  public  treas 
ury  a  hundred  thousand  dollars  more  than  his  lawful  salary,  he  had 
never  read  or  heard  about  that  part  of  the  Constitution  which  forbids 
the  compensation  of  a  President  to  be  increased  "during  the  term  for 
which  he  shall  have  been  elected."  It  probably  never  struck  him  that 
it  was  bribery  to  accept  money  and  lands  and  goods  from  men  whom 
he  immediately  afterward  appointed  to  the  highest  offices  in  his  gift. 
When  to  this  is  added  the  proneness  of  ignorant  ambition  to  that 
Csesarean  rule  of  ethics  which  declares  everything  right  which  is  done 
regnandi  causa,  you  have  a  character  dear  to  the  heart  of  strong 
government,  but  utterly  unfit  to  be  trusted  by  a  people  who  desire  to 
be  free. 

However  that  may  be,  all  evidence  shows  that  the  object  of  pushing 


POLITICAL  ESSAYS  AND  LETTERS.  407 

General  Grant  for  a  third  term  is  not  to  give  us  an  honest  and  legal 
administration  of  our  public  affairs,  but  to  set  up  some  system  of  ab 
solutism  without  law,  or,  as  Mr.  Stevens  said,  "  outside  of  the  Con 
stitution."  What  form  or  title  shall  it  have  ?  If  its  projectors  suc 
ceed,  will  they  give  us  an  imperial  despotism,  open  and  avowed  ?  Or 
will  they  curse  us  with  the  heavier  and  more  degrading  affliction  of  a 
rotten  republic  ? 

If  my  soul  could  come  into  their  counsels,  or  mine  honor  be  joined 
unto  their  assembly,  I  would  tell  them  that  their  success  now  will 
bring  them  hideous  ruin  in  the  long  run.  For  a  little  while  it  may 
increase  their  fortunes,  or  swell  their  personal  consequence,  and  gratify 
their  contemptuous  hatred  of  the  States  and  people  under  their  arbi 
trary  rule.  But  strong  government  is  a  weak  contrivance,  after  all, 
and  never  lasts.  Its  front  is  of  brass,  but  the  feet  it  stands  on  are  al 
ways  made  of  clay.  Let  those  who  would  identify  their  interests  with 
Grantism  think  well  how  unsafe  is  the  protection  they  are  seeking. 


THE  ELECTORAL  VOTE  OF  LOUISIANA.* 

To  the  Editor  of  The  Union  : 

I  COMPLY  with  the  request  to  state  my  views  concerning  the  elect 
oral  vote  of  Louisiana,  in  the  hope  that  I  may  thereby  do  some  little 
service  to  the  cause  of  peace,  good  order,  and  honest  government. 

By  the  Federal  Constitution  and  the  laws  of  Louisiana  the  peo 
ple  of  that  State  in  their  primary  capacity  (and  they  only)  have  a 
right  to  appoint  electors  of  President  and  Vice-President.  This  power 
has  been  executed  at  the  time,  at  the  places,  and  in  the  way  prescribed 
by  law.  In  accordance  with  the  universal  law  of  all  elective  govern 
ments,  the  intent  and  will  of  the  whole  people  as  a  body  is  spoken 
by  the  majority  of  the  ballots.  They  did  appoint  the  Tilden  candi 
dates.  Their  decision  to  that  effect  was  spoken  by  a  large  majority, 
in  the  prescribed  way,  with  loud  emphasis. 

Nevertheless,  certain  State  officers  of  notoriously  bad  character 
have  conspired  among  themselves  and  with  other  evil-disposed  persons 
to  hinder  and  prevent  the  appointees  of  the  people  from  performing 
the  duties  assigned  to  them  by  their  constituents  and  to  organize  an 
electoral  college  composed  of  other  persons  having  no  authority  except 
what  they  derive  from  the  fraudulent  favor  of  the  conspirators  them 
selves.  All  this  is  done  to  the  intent  and  with  the  design  that  a  false 
vote  concocted  by  a  bogus  body  may  be  sent  up,  cast,  and  counted  as 
if  it  were  (what  it  is  known  not  to  be.)  the  true  vote  of  the  State, 

*  Washington,  D.  C.,  "Union,"  December  7,  1876. 


408  POLITICAL  ESSA  YS  AND  LETTERS. 

certified  by  the  true  electors.  If  it  be  so  received  and  treated  by  the 
other  States  and  their  representatives,  then  a  rule  is  established  which 
takes  the  power  of  choosing  our  Chief  Magistrate  out  of  the  hands  in 
which  the  Constitution  is  supposed  to  have  placed  it,  and  gives  it, 
without  reservation,  to  any  combination  of  swindlers  who  may,  by 
fraud  or  force  or  accident,  get  the  machinery  of  a  State  government 
into  their  possession.  If  this  be  submitted  to  without  opposition,  and 
as  a  wrong  for  which  there  is  no  legal  remedy,  it  is  not  probable  we 
will  ever  have  an  honest  election  again. 

What  I  have  here  said  is  a  very  moderate  statement  of  the  case  as 
alleged  by  the  Democrats  of  Louisiana,  and  by  other  perfectly  reliable 
gentlemen,  who  have  carefully  investigated  the  subject.  They  declare 
that  they  can  prove  the  averments  here  made,  with  aggravations  tend 
ing  to  deepen  very  much  the  criminal  coloring  of  the  acts  done  and 
contemplated  by  their  adversaries.  I  assume  that  they  will  in  due 
time  furnish  to  Congress  and  to  the  country  such  proof  as  will  justify 
these  allegations  and  establish  their  truth. 

The  question  then  arises  whether  there  is  or  is  not  some  legal  au 
thority  by  which  this  frightful  wrong  can  be  remedied.  If  the  Con 
stitution  has  not  given  to  somebody  the  right  to  arrest  a  fraud  before 
it  defeats  the  known  and  legally-expressed  will  of  the  people  on  such  a 
subject,  then  they  have  retained  it  in  their  own  hands,  and  they  must 
compel  obedience  by  their  own  physical  force,  or  else  surrender  their 
right  of  self-government  altogether.  A  construction  of  the  law  which 
logically  leads  to  such  a  conclusion  can  not  be  the  true  one.  In  Eng 
land  a  disputed  title  to  the  crown  can  only  be  determined  by  civil  war. 
But  surely  our  wise  forefathers  did  not  intend  to  put  themselves  or  us 
— their  posterity — in  that  forlorn  condition.  They  certainly  meant 
that  a .  spurious  claim  to  the  Presidency  should  be  set  aside  in  some 
peaceable  way  by  a  judgment  whose  authority  all  must  respect,  and 
without  a  resort  to  the  ultima  ratio  regum . 

In  opposition  to  this  view  of  the  case,  there  are  those  who  seem  to 
expect  that  General  Grant  will  take  it  upon  himself  to  settle  the  con 
troversy  with  the  aid  of  the  army.  In  ordinary  times  this  notion 
might  be  treated  with  derision.  But  our  President  for  the  time  be 
ing  has  superintended  State  elections  with  the  bayonet,  seated  Gov 
ernors  who  were  not  elected,  tumbled  legislative  bodies  out  of  their 
halls,  and  done  divers  other  things  which  show  that  he  has  very  curi 
ous  views  of  his  own  powers  and  duties.  Still,  it  is  not  likely  that  he 
will  carry  things  to  the  point  of  making  war  upon  the  people  for 
electing  Tilden,  or  upon  their  representatives  for  refusing  to  count 
fraudulent  votes  in  favor  of  Hayes.  On  the  contrary,  it  is  to  be 
hoped  most  devoutly  that  when  Tilden  is  declared  by  the  proper 
authority  to  be  duly  and  constitutionally  elected,  he  will  cease  en 
tirely  from  all  lawless  meddling  with  the  business,  and  respond  favor- 


POLITICAL  ESSAYS  AND  LETTERS.  409 

ably  to  our  earnest  and  heartfelt  prayer  for  peace.  "Let  us  have 
peace." 

Those  who  desire  to  make  this  particular  fraud  successful,  and  to 
establish  a  precedent  which  will  make  fraud  omnipotent  hereafter, 
take  the  bold  ground  that  any  paper  purporting  to  be  a  certificate  of 
the  electoral  vote,  if  sent  up  to  the  President  of  the  Senate,  and  by  him 
opened  in  the  presence  of  both  Houses,  must  be  taken  as  infallibly 
true — subject  to  no  scrutiny  and  open  to  no  contradiction.  This  is 
in  square  conflict  with  the  uniform  practice  of  the  Houses ; '  it  is  in 
consistent  with  the  rules  which  they  have  deliberately  adopted  for  the 
exercise  of  their  power  and  the  performance  of  their  duty  on  such 
occasions ;  it  is  opposed  by  the  opinions  of  great  leading  men  in  the 
past  as  well  as  in  the  present  generation  ;  it  has  no  warrant  in  the 
words  of  the  Constitution  ;  it  is  utterly  at  variance  with  the  reason  of 
the  thing,  and  it  grossly  violates  the  right  of  the  people  to  be  protected 
by  their  representatives  against  imposture  and  villainy. 

The  duty  assigned  to  the  President  of  the  Senate  is  very  simple. 
The  certificates  being  sent  to  him,  he  must  keep  them,  as  he  gets 
them,  in  faithful  custody  and  close  under  seal  until  the  day  of  open 
ing,  and  then  he  must  open  them  in  the  presence  of  both  Houses. 
When  that  is  done  his  special  function  is  finished.  Because  he  keeps 
the  packages  containing  the  certificates,  and  is  authorized  to  break 
the  seals  on  a  day  fixed,  is  he,  therefore,  to  pass  upon  their  validity 
and  force  the  Houses  to  receive  and  count  them  contrary  to  their  con 
victions  of  justice  and  truth  ?  It  might  as  well  be  said  that  the  mes 
sengers  who  bring  them  up  have  this  kind  of  power. 

The  votes,  being  opened,  shall  then  be  counted.  The  Constitution 
does  not  say  in  express  words  by  whom  the  count  shall  be  made.  But 
the  rule  of  construction  which  gives  the  authority  to  the  Houses  and 
withholds  it  from  the  President  of  the  Senate  is  very  plain.  Judicial 
power  is  never  inferred  from  the  bestowal  of  a  ministerial  duty.  When 
a  written  law  requires  evidence  to  be  produced,  the  weight  and  value 
of  it  is  always  to  be  decided,  not  by  the  officer  or  person  who  brings 
it,  but  by  the  one  to  whom  it  is  brought,  and  before  whom  it  is  laid. 
Else  why  bring  it  at  all  ?  A  habeas  corpus  law  commands  that  the 
sheriif  shall  bring  the  body  of  the  prisoner  before  the  court  or  a  judge, 
together  with  the  cause  of  his  detention,  and  requires  that  the  prisoner 
shall  then  be  bailed,  remanded,  or  discharged,  as  justice  may  require. 
By  whom  ?  Certainly  by  the  court,  and  certainly  not  by  the  sheriff. 
An  executor  shall  lay  his  accounts  before  a  court  of  equity,  and  they 
shall  then  be  confirmed,  corrected,  or  modified.  The  statute  does  not 
say  by  whom  the  decree  shall  be  made,  but  it  is  absurd  to  suppose  that 
it  can  be  made  by  anybody  except  the  chancellor.  Depositions  taken 
in  a  foreign  country,  under  a  commission  or  letters  rogatory,  are  by 
statute  to  be  sent  under  seal  to  the  clerk  of  the  court,  who  shall  open 


410  POLITICAL  ESSAYS  AND  LETTERS. 

them  in  presence  of  the  court  when  the  cause  is  called.  Does  that 
give  the  clerk  power  to  pass  judgment  upon  them  ?  These  supposed 
cases  are  given  for  the  mere  purpose  of  illustration,  and  they  show  by 
clear  analogy  that  the  votes  of  the  States  for  President  and  Vice-Presi- 
dent  are  to  be  counted  by  the  Houses — counted  in  their  presence,  in 
their  sight  and  hearing,  under  their  supervision  and  control — and  truly 
counted  according  to  their  judgment  and  conscience. 

The  right,  power,  and  duty  of  the  Houses  is  to  count  the  true  votes 
of  the  States  only,  which,  of  course,  covers  and  includes  the  duty  of 
rejecting  false  votes  from  their  count,  if  it  be  known  that  spurious  votes 
have  been  placed  among  them  by  accident  or  design. 

For  certain  reasons,  which  will  be  given  presently,  it  is  plain  to  us 
that  in  case  of  disagreement  between  the  two  Houses  concerning  their 
duty  to  count  or  reject  a  vote,  the  judgment  of  the  Senate  must  pre 
vail  in  regard  to  the  Vice-Presidency,  and  that  of  the  House  on  the 
Presidency.  Before  coming  to  that,  however,  we  are  to  consider  upon 
what  grounds  either  House,  or  both  together,  can  act  in  rejecting  a 
vote. 

It  is  claimed  that  the  certificate  of  the  State  officers,  if  it  be  in  due 
form,  imports  absolute  verity — must  be  taken  as  infallibly  true,  and 
can  not  be  questioned  or  disputed.  This  is  true  doubtless.  Congress 
is  not  a  national  returning  board,  and  can  not  sit  to  hear  appeals  from 
the  returning  boards  of  the  States — can  not  rejudge  the  justice  done 
by  the  State  authorities,  or  correct  their  errors.  The  decision,  if  it 
be  a  decision,  of  the  State  authorities  is  as  conclusive  and  binding  on 
all  the  world,  including  Congress,  as  the  judgment  of  a  court  of  last 
resort  upon  a  subject  within  its  exclusive  jurisdiction. 

Congress  is  bound,  therefore,  to-  count  the  Louisiana  vote,  unless 
some  fact  be  shown  against  the  certificate  which  proves  it  to  be  not 
merely  erroneous,  but  void.  If  the  vote  comes  up  from  a  body  of  men 
pretending  to  be  electors,  but  who  in  truth  have  never  been  appointed 
as  such  according  to  the  laws  of  the  State,  their  act  must  certainly  be 
treated  as  a  nullity.  Men  can  not  constitute  themselves  electors,  nor 
be  constituted  by  anybody  else  except  the  proper  appointing  power. 
Suppose  the  power  of  appointment  to  be  in  the  Legislature.  The 
Legislature,  in  the  prescribed  manner  and  at  the  proper  time,  makes 
its  appointment  by  a  clear  majority  of  its  votes,  which  are  duly  re 
corded  and  certified  by  its  officers.  Yet  the  Governor,  not  only  with 
out  the  consent  of  the  Legislature,  but  in  defiance  of  its  expressed  will 
to  the  contrary,  fixes  up  a  different  set  of  men  as  an  electoral  college, 
and  gets  them  to  cast  their  vote  as  the  vote  of  the  State.  Is  there  an 
honest  man  in  the  country  who  would  be  willing  to  promote  the  object 
of  such  a  proceeding  by  counting  the  vote  of  such  pretended  electors  ? 
The  case  under  consideration  is  precisely  analogous  to  this.  Here  the 
power  to  appoint  is  in  the  people  who  have  exercised  it ;  their  votes 


POLITICAL  ESSAYS  AND  LETTERS.  411 

are  counted  and  recorded  decisively,  showing  their  designation  of  cer 
tain  persons  as  their  appointees.  But  the  Governor  dishonestly  takes 
upon  himself  and  seven  associates  the  duty  of  voting  for  President  in 
the  name  of  the  State.  If  this  be  not  a  mere  bogus  college  of  electors 
what  would  be  ?  If  these  men  can  cast  the  vote  of  the  State,  what  is 
to  hinder  any  other  eight  men  from  doing  the  same  thing  ? 

The  right  of  Congress  to  throw  out  the  vote  of  persons  not  duly 
appointed  has  never  been  denied  in  the  cases  of  Territories  not  fully 
admitted  as  States,  or  of  States  supposed  to  be  out  of  the  Union  as  a 
consequence  of  their  rebellion.  If  you  reject  the  votes  of  electors  be 
cause  the  State  could  not  appoint,  a  fortiori,  you  must  reject  the  votes 
of  electors  whom  the  State  could  appoint,  but  did  not.  And  the 
principle  applies  a  multo  fortiori  to  the  case  of  persons  to  whom  the 
appointing  power  expressly  refused  the  trust  and  bestowed  it  on  others. 
Indeed,  no  absurdity  could  be  more  palpable,  and  none  could  lead  to 
worse  consequences,  than  a  decision  that  the  vote  of  a  State  must  be 
taken  as  it  is  thrown  by  any  set  of  persons  who  claim  to  do  it,  without 
regard  to  the  authority  which  they  hold  or  the  source  from  whence 
they  derive  it.  If  that  principle  prevails,  what  is  to  be  the  predica 
ment  of  things  when  two  or  three  or  a  dozen  sets  of  electors  all  claim 
the  right  to  vote,  and  all  send  up  their  certificates  in  apparently 
proper  form,  and  all  are  laid  before  Congress  by  the  President  of  the 
Senate  ? 

It  will  certainly  not  be  denied  that  Congress  may  inquire  into  the 
genuineness  of  any  certificate  produced  by  the  President  of  the  Senate. 
If  it  is  known  to  be  a  mere  forgery,  all  men  of  common  integrity  will 
say  with  one  voice  that  it  must  not  and  shall  not  be  counted.  That 
being  settled,  let  us  see  what  follows  in  the  case  under  consideration. 

Forgery  is  the  fraudulent  making  or  alteration  of  a  writing  to  the 
prejudice  of  another's  right.  If  the  returning  board  and  Governor  of 
Louisiana  willfully,  fraudulently,  and  falsely  make  a  certificate  that 
certain  persons  therein  named  had  a  majority  of  the  popular  votes, 
knowing  the  fact  to  be  otherwise,  they  bring  themselves  literally  within 
this  definition.  The  books  on  criminal  law  teach  that  an  indictable 
forgery  is  proved  when  a  paper,  though  signed  by  the  hand  of  the 
proper  person,  and  not  afterward  altered,  is  brought  into  contact  with 
any  trick  or  imposture  practiced  by  or  upon  the  maker  of  it.  Thus, 
a  note  for  a  thousand  dollars,  signed  by  an  illiterate  man  on  the  assur 
ance  that  it  binds  him  to  pay  only  five  hundred  ;  a  will  drawn  con 
trary  to  instructions  and  misread  to  the  testator ;  a  deed  antedated 
with  the  consent  of  both  parties  to  affect  injuriously  the  rights  of 
others — these  are  held  to  be  forgeries  by  all  the  text  writers  on  crimi 
nal  law,  from  Coke  to  Wharton.  The  judicial  decisions,  however,  in 
England  and  America  are  not  uniform  on  this  point ;  and  I  admit  the 
better  opinion  to  be  that  an  indictment  for  forgery  can  not  be  sus- 


412  POLITICAL  ESSAYS  AND  LETTERS. 

tained  without  proof  of  an  actual  false  making  of  the  paper,  in  whole 
or  in  part,  a  simulation  or  counterfeiting,  which  gives  it  the  appear 
ance  of  being  made  by  somebody  who  did  not  make  it.  But  this  latter 
rule  applies  only  to  private  papers,  and  would  hardly  save  the  Louisi 
ana  conspirators,  if  indicted  for  forgery  in  the  fabrication  of  false 
election  returns.  It  has  never  been  held  that  an  official  certificate,  in 
tended  for  a  fraudulent  purpose,  and  known  to  be  false,  is  not  a  forg 
ery.  An  auditor  of  the  Treasury  certifies  to  a  balance  in  favor  of  a 
person  whom  he  knows  to  be  not  a  creditor,  but  a  debtor  of  the  Gov 
ernment,  with  intent  to  defraud  the  public  ;  a  justice  certifies  that  a 
deposition  was  sworn  to  before  him  by  a  person  whom  he  never  saw  ; 
the  clerk  of  a  court  certifies  to  false  naturalization  papers.  These 
ought  to  be,  and  would  be  held  for  forgeries.  A  commissioner,  super 
visor,  or  inspector  of  election  whose  duty  it  is  to  count  the  ballots  at 
a  particular  polling-place  fabricates  a  certificate,  signs  and  returns  it 
in  total  violation  of  what  he  knows  to  be  the  truth ;  how  would  he 
fare  in  a  court  if  indicted  for  forgery  ?  But  suppose  the  returns  to 
be  honestly  made  to  the  central  authority  of  the  State,  where  the  Gov 
ernor,  secretary,  or  special  board  of  canvassing  officers  are  required 
to  aggregate  the  returns,  can  they  make  a  certificate  willfully  falsify 
ing  the  whole  result  of  the  election  without  being  guilty  of  forgery  ? 
While  I  concede  that  this  technical  question  is  not,  in  the  present 
state  of  the  law,  clear  enough  to  justify  any  dogmatism  about  it,  the 
conclusion  is  not  unreasonable  or  presumptuous  that  the  canvassing 
officers  who  did  this  thing,  the  Governor  who  participated  in  it,  and 
all  other  persons  who  encouraged  or  aided  them,  are  within  the  con 
demnation  which  the  law  pronounces  upon  forgers.  I  ought,  however, 
to  add  that  I  have  not  looked  at  the  criminal  code  of  Louisiana.  I 
have  taken  it  for  granted  that  it  contains  nothing  inconsistent  with 
the  general  principle  established  in  England  by  the  statute  of  Eliza 
beth,  and  adhered  to  in  the  other  States  of  this  Union. 

But  this  is  not  important  now,  and  will  never  become  so  unless  the 
guilty  parties  be  prosecuted.  The  question  at  present  is  whether  a 
vote  known  to  be  false  and  fraudulent  shall  be  received  as  a  true  one. 
What  weight  or  value  shall  be  given  as  evidence  to  papers  concocted 
with  a  predetermined  intent  to  cheat  ?  If  the  evidence,  which  is  laid 
before  Congress,  that  Louisiana  voted  for  Hayes,  shall  be  shown  to 
have  its  conception,  its  birth,  and  its  nurture  in  mere  iniquity,  what 
honest  man  can  safely  give  it  entertainment?  A  fraudulent  paper 
proves  nothing ;  ifc  is  a  mere  nullity,  as  corrupt  in  morals  and  as  void  in 
law  as  any  forgery  can  possibly  be. 

The  conclusiveness  of  the  certificate  made  in  legal  form  by  the 
proper  State  authorities  is  admitted.  But  that  always  presupposes 
the  honesty  of  the  act.  A  judgment  of  the  Supreme  Court  is  conclu 
sive,  too  ;  but  any  justice  of  the  peace  who  knows  it  to  have  been  cor- 


POLITICAL  ESSAYS  AND  LETTERS.  413 

ruptly  obtained  may  properly  cast  it  aside.  The  most  solemn  act  of 
the  Executive — a  pardon,  a  patent,  or  a  commission — loses  all  validity 
if  it  be  tainted  with  fraud.  Under  proof  of  any  dishonest  practice 
any  private  deed  and  every  private  record  becomes  as  worthless  as  a 
blank,  no  matter  with  what  solemnity  it  may  have  been  executed  or 
how  carefully  attested.  All  writings  are  obliterated,  and  great  seals 
of  State  crumble  into  dust  the  moment  they  are  brought  into  contact 
with  a  covenous  fact.  This  applies  to  election  returns  as  well  as  to 
everything  else. 

The  principle  which  fences  us  against  knavery  in  matters  of  minor 
importance  will  not  fail  us  when  an  attempt  is  made  to  cheat  us  by 
wholesale  out  of  the  right  to  be  governed  by  a  President  of  our  own 
choice.  It  has  been  applied  to  election  certificates  in  cases  precisely 
analogous  to  this.  Once  upon  a  time  the  majority  in  the  House  of 
Representatives  depended  upon  the  election  of  members  in  New  Jersey. 
The  Democrats  were  chosen,  but  the  Whig  Governor  of  the  State, 
tempted  by  the  opportunity  which  he  thought  he  had  of  making  a 
bold  stroke  for  his  party,  dishonestly  certified  the  election  of  the  mi 
nority  candidates  and  commissioned  them  under  the  broad  seal.  The 
commission,  if  it  had  any  force  at  all,  was  conclusive  evidence  of  their 
right  to  sit  as  members  until  they  were  unseated  upon  a  regular  peti 
tion  and  contest.  But  it  was  fraudulent,  and  therefore  void  altogether. 
It  was  not  allowed  to  prevail  for  a  moment.  In  Pennsylvania  a  similar 
trick  was  tried  in  favor  of  candidates  for  the  Legislature  known  to  be 
defeated  by  means  of  a  certificate  from  the  returning  officers,  pro 
nounced  by  the  Governor,  the  Secretary  of  the  Commonwealth,  and 
all  high  authorities  to  be  conclusive.  But  being  known  to  be  a  sham  and 
a  falsehood,  the  right  claimed  under  it  was  resisted  to  the  uttermost. 
Nobody  now  believes  that  it  was  not  rightly  and  legally  treated. 

But  it  may  be  denied  that  the  action  of  the  Governor  and  the  re 
turning  board  is  fraudulent.  That  is  a  matter  of  fact  not  yet  in  shape 
for  full  discussion.  If  the  Hayes  electors,  the  Governor,  the  returning 
board,  and  other  parties  to  this  transaction  can  prove  that  they  added 
up  the  vote  and  certified  the  aggregate  results  according  to  the  truth 
as  it  really  was,  or  as  they  had  reason  to  believe  it,  then  the  Democrats 
have  no  case.  But  if  they  knew  what  the  result  was,  and  yet  willfully 
falsified  it,  that  is  a  fraud  per  se.  They  not  only  did  this,  but  they 
greatly  aggravated  the  guilt  of  the  act  by  founding  it  on  pretenses 
known  to  be  false  in  fact  and  insufficient  in  law. 

It  is  said  that  the  returning  board  is  not  bound  to  make  a  mere 
count  of  the  votes  and  ascertain  what  candidates  have  a  majority,  but 
may  sit  in  judgment  on  the  returns  from  every  parish,  and  certify 
the  majority  not  as  it  actually  is,  but  as  in  their  opinion  it  ought  to 
be.  To  support  this  they  quote  section  3  of  the  Louisiana  election 
law,  which  no  one  can  read  without  seeing  that  it  was  passed  by  a  cor- 


414:  POLITICAL  ESSA  YS  AND  LETTERS. 

rupt  Legislature  to  prevent  the  people  of  the  State  from  turning  out 
the  party  then  occupying  the  State  offices. 

A  returning  board  certainly  ought  to  have  judicial  or  quasi- judi 
cial  powers  to  a  certain  extent,  to  correct  the  blunder  of  a  superin 
tendent,  to  inquire  whether  a  return  from  any  polling-place  is  proper 
ly  authenticated,  to  ascertain  what  votes  have  been  cast  for  any  candi 
date  by  persons  not  qualified,  and  make  the  proper  deduction.  This 
is  authority  which  may  certainly  be  given  to  State  canvassers.  But  it 
is  not  given  to  the  Louisiana  board  by  the  section  referred  to.  They 
assert  that  it  does  give  them  power  to  disfranchise  all  the  inhabitants 
of  any  parish  in  which  there  has  been  "an  act  of  violence,  riot,  tu 
mult,  intimidation,  armed  disturbance,  bribery,  or  corrupt  influence." 
Their  jurisdiction,  as  they  claim  it,  is  that  of  the  highest  criminal 
court,  and  is  to  be  exercised  in  ways  totally  prohibited  to  all  courts. 
They  may  try  the  people  of  a  whole  parish  at  once,  and  condemn  them 
all  on  ex  parte  statements,  without  a  hearing  or  notice,  for  acts  of  vio 
lence  committed  by  a  person  unknown  to  them  at  any  place  within 
their  borders,  and  at  any  time  in  the  indefinite  past.  A  conviction 
obtained  in  this  way  is  immediately  followed  by  a  sentence  of  disfran- 
chisement,  which  I  need  not  say  is  the  most  frightful  penalty  that  can 
be  inflicted  on  a  people  struggling  to  free  themselves  from  the  domi 
nation  of  reckless  knaves.  This  terrible  jurisdiction  to  doom  and 
punish  may  seem  to  be  mitigated  by  the  pardoning  power,  for  the 
board  is  authorized  to  condone  the  offense  when  they  think  it  has  not 
"materially  changed  the  result  of  the  election."  But  no  clemency  is 
ever  extended  to  their  political  opponents.  The  "result  of  the  elec 
tion  "  is  always  "  materially  affected  "  by  an  act  of  violence  or  fraud,  no 
matter  when,  where,  or  by  whom  committed  in  a  Democratic  district, 
but  the  reverse  is  sure  to  be  held  where  the  majority  is  not  Democratic. 

Will  any  man  in  the  world  say  that  a  power  like  this  may  be  held 
and  wielded  by  a  returning  board  consistently  with  the  fundamental  law 
of  Louisiana,  or  any  other  free  State  ?  No  ;  for  reasons  too  numerous 
to  mention.  It  usurps  authority  which  belongs  exclusively  to  the 
courts  ;  it  imposes  the  severest  punishment,  without  trial  or  evidence, 
upon  large  bodies  of  men  who  are  known  to  be  innocent  of  every  of 
fense  ;  in  defiance  of  the  State  constitution,  it  refuses  the  votes  of 
qualified  citizens,  and  makes  the  right  of  suffrage  a  mere  mockery. 
Moreover,  it  flatly  violates  that  express  provision  of  the  Federal  Con 
stitution  which  declares  that  "  no  person  shall  be  disfranchised  except 
for  rebellion  or  other  crime,"  which,  of  course,  means  a  crime  of  Ms 
own  whereof  he  is  legally  convicted. 

Besides  that,  this  law  does  not  apply  to  the  case  of  presidential 
electors.  It  is  expressly  confined  to  State,  parish,  and  judicial  offi 
cers,  to  members  of  the  Assembly,  and  members  of  Congress.  There 
is  another  and  a  totally  different  provision  for  canvassing  and  count- 


POLITICAL  ESSAYS  AND  LETTERS.  415 

ing  the  votes  for  presidential  electors,  which  appears  to  be  in  full 
force. 

On  the  whole  case  the  law  and  the  evidence,  which  is  sure  to 
come  through  the  proper  committee,  will  demonstrate  this  to  be  a 
monstrous,  unmitigated,  palpable  fraud  upon  Louisiana  and  upon  the 
whole  American  people.  It  is  not  the  vote  of  the  State,  nor  the 
product  of  any  State  authority  legally  exercised,  but  the  mere  spawn 
of  a  criminal  conspiracy.  It  is  impossible  to  see  how  Congress,  or 
either  House  of  Congress,  can,  with  its  eyes  open,  receive  this  thing  and 
palm  it  off  on  the  nation  as  a  genuine  vote,  without  becoming  a  par 
taker  in  the  crimes  which  gave  it  origin,  unless  the  law  teaches  a  false 
doctrine  when  it  says  that  he  who  knowingly  utters  a  false  paper  is  as 
guilty  as  he  who  makes  it. 

But  it  is  possible  that  the  judgment  of  the  two  Houses  upon  this 
subject  may  differ  toto  ccelo.  They  act,  deliberate,  and  decide  inde 
pendently  of  each  other.  Though  they  sit  in  the  same  hall  while  the 
votes  are  counting,  they  are  not  fused  into  one  body.  Upon  any 
question  within  the  jurisdiction  of  both,  the  judgment  of  one  is  as 
potent  as  the  other,  and  it  is  equally  clear  that  each  must  decide  for 
itself  how,  when,  and  in  what  manner  the  separate  duties  assigned  to 
it  shall  be  performed. 

Now,  the  Senate  may  think  that  this  vote  is  not  fraudulent,  or  it 
may  believe  that  fraud  is,  and  ought  to  be,  as  good  and  valid  as  truth, 
while  the  House  adheres  to  the  opposite  notion,  and,  acting  upon  its 
convictions,  refuses  to  sanctify  the  fraud  by  adopting  it.  What  then  ? 
Does  that  bring  the  organic  machinery  of  the  Government  to  a  dead 
lock,  so  that  it  can  not  move  without  breaking  to  pieces  ?  Certainly 
a  difference  between  the  two  Houses  must  be  followed  by  that  disas 
trous  consequence,  if  it  be  true  that  each  has  the  same  power  over  the 
whole  subject  and  over  every  part  of  it.  Let  us  see  if  this  be  the  state 
of  the  law  as  the  framers  of  the  Constitution  made  it. 

The  power  to  count  the  votes  and  decide  upon  their  validity  is  not 
given  in  express  words.  But  it  comes  by  clear  implication  from  the 
duty  of  electing  a  President  and  Vice-President  in  case  no  candidate 
has  a  majority  of  the  electors.  The  subsequent  and  immediate  duty 
of  the  House  depends  upon  the  state  of  the  electoral  vote  for  Presi 
dent,  as  the  Senate's  action  must  be  governed  by  the  vote  for  Vice- 
President.  The  duty  to  do  an  act  upon  a  certain  contingency  cer 
tainly  implies  the  power  to  ascertain  whether  that  contingency  has 
arisen  or  not.  If  the  Senate  thinks  it  right  to  admit  fraudulent  votes, 
and  can  find  enough  of  them  to  elect  their  candidate,  they  may  in 
stall  him  in  the  chair  of  their  body,  since  there  is  no  legal  authority  in 
the  House  of  Representatives  or  elsewhere  to  stop  them.  If  they, 
upon  examination,  believe  that  a  true  count  of  the  legal  vote  gives  no 
one  a  majority,  and  thereupon  proceed  to  make  an  election  of  their 


4:16  POLITICAL  ESSAYS  AND  LETTERS. 

own  between  the  two  highest,  the  House  certainly  can  not  interfere. 
The  House  is  equally  independent  when  engaged  in  the  performance 
of  the  duty  separately  and  specially  assigned  to  it.  If  no  candidate 
has  a  majority  of  all  the -electoral  votes,  the  Eepresentatives  of  the 
people  in  the  Lower  House  shall  make  a  choice  from  the  three  high 
est.  How  is  this  duty  to  be  rightfully  performed  without  ascertain 
ing  whether  any  candidate  has  a  majority,  and,  if  not,  who  are  eligi 
ble  as  the  three  highest  ?  And  by  whom  shall  the  fact  be  ascertained 
if  not  by  themselves  ?  If  the  House,  upon  what  it  believes  to  be  a 
true  count  of  the  votes,  shall  determine  that  no  one  has  a  majority, 
can  the  Senate  interfere  and  command  the  House  not  to  elect  ?  Or 
can  it  dictate  to  the  House  the  names  of  the  three  persons  from  whom 
the  choice  is  to  be  made  ?  To  ask  these  questions  is  to  answer  them. 
The  Senate  having  nothing  to  do  with  the  presidential  election  has  no 
duty  to  perform  about  it — can  pronounce  no  judgment  upon  it  that 
binds  anybody.  For  the  same  reason  the  House  can  not  interfere 
with  the  business  of  electing  a  Yice-President,  which  the  Constitution 
has  confided  to  the  Senate.  Each  is  as  far  from  the  control  of  the 
other  as  both  are  from  the  control  of  the  Executive. 

There  is  a  joint  rule  of  the  two  Houses,  by  which  they  have  mutu 
ally  bound  themselves,  that  neither  House  shall  count  a  vote  for  Presi 
dent  or  Yice-President  if  the  other  decides  to  throw  it  out.  Whether 
this  rule  is  in  force  or  not  makes  no  practical  difference  in  the  present 
case  on  the  question  between  Tilden  and  Hayes.  The  refusal  of  the 
House  to  count  the  fraudulent  votes,  if  it  does  not  prevail  under  the 
rule,  must  be  made  equally  effectual  under  the  naked  Constitution. 


FORENSIC. 


ABLEMAN   vs.  BOOTH.— THE  UNITED  STATES   vs. 

BOOTH. 

STTPEEME    COUET    OF   THE   UNITED    STATES. 

May  it  please  your  Honors  : 

THESE  two  cases  may  be  regarded  as  one  and  the  same  case.  They 
both  arise  out  of  the  same  transaction,  and  one  of  them  takes  it  up 
just  at  the  place  where  the  other  drops  it.  It  is  some  little  time  since 
I  have  carefully  looked  at  the  record,  but  I  think  I  can  state  the  facts 
of  the  cases  without  danger  of  committing  any  material  error. 

It  appears  that  a  negro  slave  absconded  from  his  master  in  the 
State  of  Missouri,  and  came  over  into  Wisconsin,  where  he  was  appre 
hended  under  the  act  of  1850.  While  he  was  in  the  custody  of  the 
marshal,  he  was  aided  and  assisted  by  Booth,  the  defendant  in  error, 
to  escape.  For  that  offense  Booth  was  prosecuted  under  the  seventh 
section  of  the  act ;  arrested,  carried  before  a  commissioner,  and,  refus 
ing  to  give  bail,  was  committed  for  trial.  After  he  went  into  custody 
under  the  warrant  of  commitment,  he  made  application  to  one  of  the 
judges  of  the  Supreme  Court  of  the  State  of  Wisconsin  for  a  writ  of 
habeas  corpus,  which  was  allowed  him.  The  judge,  after  hearing  the 
cause  at  his  chambers,  delivered  a  very  elaborate  opinion,  in  which  he 
proved,  apparently  to  his  own  entire  satisfaction,  that  the  fugitive 
slave  law  was  unconstitutional,  and  that  there  were  certain  fatal  de 
fects  in  the  warrant  of  commitment.  From  these  premises  he  drew 
the  deduction  that  he  had  the  right  to  discharge  the  prisoner,  so  that 
he  could  not  be  tried  by  the  United  States  Court. 

To  this  proceeding  a  certiorari  was  taken  by  the  District  Attorney 
of  the  United  States,  and  the  case  was  removed  into  the  Supreme 
Court  of  the  State,  in  bane.  There  it  was  heard  again.  The  judge 
who  had  already  heard  the  cause  adhered  to  his  previous  opinion. 
One  of  his  brethren  agreed  with  him  that  the  law  was  unconstitutional, 
but  put  his  opinion  upon  grounds  somewhat  different.  The  other 
judge  concurred  in  affirming  the  order  of  discharge  for  the  supposed 
27 


418  FORENSIC. 

defects  in  the  form  of  the  warrant.  The  prisoner  was  therefore  finally 
discharged,  so  far  as  that  proceeding  went. 

Nevertheless,  at  the  next  term  of  the  District  Court  of  the  United 
States,  a  true  bill  was  found  by  the  grand  jury,  and  upon  that  indict 
ment  a  bench  warrant  was  issued  by  the  judge,  on  which  he  was  ap 
prehended  to  await  his  trial  at  the  next  succeeding  term.  He  made 
application  again  for  another  habeas  corpus  to  the  Supreme  Court  of 
Wisconsin.  They  refused  to  allow  the  writ,  on  the  very  sensible 
ground — sensible,  I  mean,  when  considered  with  reference  to  what  the 
same  court  did  before  and  afterward— that  they  had  no  authority  over 
the  matter,  and  that  the  District  Court  had  all  authority.  He  was 
tried ;  his  guilt  was  proved ;  he  was  convicted ;  a  motion  was  made 
for  a  new  trial,  which  was  refused  ;  he  moved  in  arrest  of  judgment, 
and  that  also  was  overruled  ;  he  was  sentenced— sentenced  moderately 
—to  a  fine  of  two  hundred  dollars,  and  ten  days'  imprisonment  in  the 
common  jail. 

Immediately  after  he  went  into  the  custody  of  the  marshal  in  ex 
ecution  of  this  sentence,  he  made  a  third  application  to  the  Supreme 
Court  of  the  State  for  another  habeas  corpus,  which  was  allowed  him, 
and  they  heard  the  cause  again.  But  then  it  was  heard  ex  parte.  The 
District  Attorney  supposed  that  he  had  done  his  whole  duty  when  he 
had  followed  the  prisoner  until  he  saw  him  convicted  by  a  jury,  and 
in  custody  under  the  sentence  of  a  court  having  exclusive  jurisdiction 
of  the  offense.  But  the  case  was  argued  at  length  by  the  counsel  for 
the  prisoner,  and,  after  that,  it  was  taken  up  by  the  judges  and  argued 
by  them  at  still  greater  length  on  the  same  side.  The  same  differences 
of  opinion  manifested  themselves  then,  which  had  existed  before,  on 
the  constitutional  question.  The  third  judge,  who  had  previously  dis 
sented  from  the  other  two,  dissented  again,  holding  that  the  Fugitive 
Slave  Law  was  constitutional  enough.  But  it  seems  not  to  have  entered 
the  head  of  any  judge  on  the  bench  that  the  question  was  already 
settled.  That  the  District  Court,  the  tribunal  to  which  Congress  had 
referred  the  whole  case  for  decision,  was  entitled  even  to  a  voice  in  the 
matter,  was  a  proposition  which  no  one  thought  of  unless  to  deride  it. 

There  was  another  subject  upon  which  they  were  unanimous,  and 
that  was,  that  if  they  could  find  any  defect  in  the  pleadings — if  the 
offense  was  not  set  forth  in  the  indictment  with  the  legal  precision 
which  the  statute  required,  according  to  their  construction  of  the  stat 
ute — then  also  they  might  reverse  the  judgment  of  the  District  Court, 
and  enlarge  the  prisoner.  Thereupon  each  judge  drew  as  fine  a  sight 
as  he  possibly  could  upon  the  indictment,  and  each  one  saw,  or  thought 
he  saw,  some  defect  in  it.  Upon  these  grounds  they  discharged  the  con 
vict,  who  goes  unpunished  at  this  hour.  He  has,  besides,  the  implied 
assurance  of  the  Supreme  Court  that  if  he  pleases  to  commit  the  same 
offense  again,  they  will  use  all  their  power  to  screen  him  from  justice. 


FORENSIC.  419 

When  these  writs  of  error  were  taken,  the  judges  refused  to  obey 
them,  and  directed  their  clerk  not  even  to  give  us  a  copy.  But  we 
had  copies  before,  and  upon  them  the  cases  were  docketed,  as  your 
honors  remember. 

Before  I  proceed  to  consider  what  may  be  called  the  legal  merits — 
or  rather  the  demerits — of  these  cases,  I  desire  to  call  the  attention  of 
the  court  (but  only  for  a  moment)  to  the  manner  in  which  they  come 
here.  I  have  not  a  doubt  that  the  filing  of  a  record  attested  as  this 
is  will  give  your  honors  complete  and  ample  jurisdiction  to  revise  the 
proceedings  and  to  reverse  or  affirm  the  judgment  as  you  may  see  fit. 
I  am  equally  well  satisfied  that  my  predecessor's  conduct  was  governed 
by  good  and  wise  reasons.  Nor  do  I  think  that  any  other  course  ought 
to  have  been  taken  by  this  court  itself  ex  mero  motu.  But  what  I  do 
fear  is,  that  this  case,  taken  in  connection  with  that  of  Worcester  vs. 
The  State  of  Georgia,  may  be  regarded  as  authority  for  a  principle 
which  I  am  very  sure  neither  of  them  was  intended  to  cover.  The 
inference  may  be  that  this  court  considers  itself  as  being  powerless  to 
enforce  obedience  to  a  writ  of  error  addressed  to  a  State  court.  This, 
of  course,  is  untrue,  and  might  lead  to  serious  trouble.  It  might 
happen — it  is  almost  a  wonder  that  it  did  not  happen  in  this  case — 
that  nothing  but  a  regular  return  will  bring  the  record  here. 

Most  assuredly,  if  this  court  is  authorized  to  issue  a  writ  of  error, 
as  by  the  Constitution  of  the  United  States  and  the  act  of  1789  it  is, 
to  a  State  tribunal  of  the  last  resort,  that  authority  must  be  coupled 
with  the  power  to  enforce  obedience.  It  is  no  law  unless  it  has  a  sanc 
tion,  as  Mr.  Justice  McLean  said  in  Kobinson's  case.  How,  then,  is 
the  duty  imposed  by  the  command  of  this  court  upon  the  judges  of  a 
State  court,  to  be  enforced  ?  I  answer,  by  proceedings  against  them 
as  for  a  contempt.  That  is  the  mode  of  enforcing  obedience  to  all 
process  of  every  court,  except  in  cases  otherwise  specially  provided  for 
by  statute.  Against  whom  is  the  proceeding  to  be  directed  ?  Not 
against  the  clerk,  who  is  merely  the  hand  of  the  judges,  but  against 
the  judges  themselves,  to  whom  the  writ  of  error  is  directed,  who  can 
not  shift  the  sin  of  disobeying  it  on  their  servant,  nor  atone  for  their 
offense  by  a  punishment  inflicted  on  him. 

In  the  practice  of  that  State  with  whose  code  of  procedure  I  am 
most  familiar,  it  has  often  happened  that  rules  have  been  made  in  the 
Supreme  Court  upon  judges  of  the  Common  Pleas  to  show  cause  why 
attachments  should  not  issue  against  them.  I  speak  what  I  do  know 
when  I  say  that,  in  every  case  where  a  rule  was  taken,  the  proceeding 
would  have  ended  in  the  conviction  of  the  judges,  if  some  good  de 
fense  had  not  been  made.  In  one  of  the  recent  English  reports — the 
fourth  volume  of  the  "Jurist" — where  Baron  Alderson  was  ruled  to 
show  cause  why  an  attachment  should  not  issue  against  him  for  a  simi 
lar  offense,  he  made  an  explanation  which  showed  that  he  was  not  in 


420  FORENSIC. 

contempt,  and  therefore  the  matter  was  dropped.  But  it  was  not 
dropped  because  the  court  that  issued  the  writ  of  error  did  not  think 
they  had  the  power  to  imprison  him  if  he  had  finally  and  willfully  re 
fused  to  perform  his  duty.  The  general  rule  is  also  laid  down  in  the 
Institutes.  In  the  very  remarkable  controversy  that  took  place  in 
New  York  between  Lansing  and  Yates — or  one  of  the  branches  of  that 
case — the  Court  of  Errors  and  Appeals  took  the  same  course  with  the 
judges  of  the  Supreme  Court. 

JUDGE  NELSON. — That  is  the  acknowledged  practice  in  New  York. 

ATTORNEY-GENERAL  BLACK. — It  is  so  in  Pennsylvania;  it  is  so 
everywhere.  All  authority  is  for  it.  There  is  no  authority  nor  no 
practice  against  it.  The  reason  of  the  thing  and  all  the  analogies  of 
the  law  are  in  favor  of  it. 

For  these  reasons,  I  hope  that  your  honors  will  cause  it  to  be 
understood,  as  clearly  and  distinctly  as  possible,  that  these  judges,  in 
refusing  to  send  up  their  record,  violated  a  plain  obligation  imposed 
upon  them  by  the  Constitution  of  the  United  States,  which  they  were 
sworn  to  support ;  that  in  that  refusal  they  were  guilty  of  a  contempt 
of  this  court ;  that  such  a  contempt  is  a  high  crime  against  the  ad 
ministration  of  justice ;  and  that  these  men  owe  their  impunity,  not 
to  any  weakness,  or  supposed  weakness,  of  this  tribunal,  but  to  the 
magnanimity  of  the  Government  in  forbearing  to  ask  for  punishment. 

Passing  from  that,  let  us  look  at  the  record  itself. 

I  desire  to  speak  as  respectfully  as  possible  of  "all  who  are  placed 
over  us."  I  know  that  it  is  the  religious  duty  of  every  Christian  man, 
and  the  political  duty  of  every  good  citizen,  not  "to  speak  evil  of 
dignities."  But  I  would  be  withholding  from  this  court  what  I  most 
devoutly  believe  to  be  the  truth,  if  I  did  not  say  that  the  whole  of 
these  proceedings  in  the  State  Court  of  Wisconsin  are,  from  beginning 
to  end,  a  mere  tissue  of  legal  absurdities.  I  say  this  "more  in  sorrow 
than  in  anger  "  ;  for  two  of  the  judges,  constituting  a  majority  of  the 
court,  have  discussed  the  case  in  terms  of  decency  and  moderation. 
Of  the  other  judge  I  have  nothing  to  say  one  way  or  the  other.  If 
you  will  take  the  trouble  to  read  his  voluminous  opinions  in  these  cases 
you  will  know  as  much  about  him  as  I  do. 

The  legal  point  that  was  decided  in  one  of  these  cases  is  just  this, 
stated  as  shortly  as  possible — of  course,  I  make  the  statement  in  my 
own  words  :  That  where  an  offender  against  the  laws  of  the  United 
States  is  on  his  trial,  the  court  which  alone  has  power  to  try  him  shall 
not  be  permitted  to  determine  whether  the  law  that  defines  the  offense 
is  constitutional  or  not ;  nor  to  give  the  construction  of  it ;  nor  to  de 
cide  whether  the  offense  is  sufficiently  set  out  upon  its  oivn  record; 
lut  after  conviction  and  after  judgment  all  these  questions  remain  open 
to  further  inquiry,  and  may  le  readjudicated  ly  any  State  judge  who 
is  invested  by  a  State  law  with  the  general  authority  to  issue  writs  of 


FORENSIC.  421 

habeas  corpus.  That  is  the  proposition  decided  in  one  of  these  cases. 
In  the  other,  it  is  held  :  That  a  party  charged  with  an  offense  against 
the  laws  of  the  Union,  and  in  custody  of  the  Federal  officers  awaiting 
his  trial,  may  be  taken  out  ~by  habeas  corpus  and  discharged  without 
trial,  by  any  State  judge  who  has  self-complacency  enough  to  think  he 
understands  the  law  and  the  Constitution  better  than  the  tribunal 
whom  Congress  and  theframers  of  the  Constitution  have  charged  with 
the  duty  of  deciding  upon  them.  If  I  were  required  to  make  one  head- 
note  for  both  the  cases,  it  would  be  this  :  That  the  habeas  corpus  in 
the  hands  of  a  State  judge  may  be  used  against  the  Federal  tribunals 
as  a  Writ  of  Prohibition  before  judgment,  and  a  Writ  of  Error  after 
judgment. 

This  claim  is  not  based  by  the  "Wisconsin  court  upon  any  appellate 
jurisdiction  which  they  supposed  themselves  to  have.  They  admit 
that  no  authority  is  given  them  by  any  law,  either  of  the  State  or  of 
the  United  States,  to  review  the  proceedings  of  a  Federal  court.  They 
do  not  assert  even  a  right  to  try  the  party  themselves.  They  merely 
say  that  no  Federal  court  can  have  jurisdiction  in  any  case  where  it 
has  committed  or  is  likely  to  commit  an  error.  Being  without  juris 
diction,  its  proceedings  are  null  and  void.  They  have  a  right  to  de 
termine  what  is  an  error  and  what  is  not.  It  follows  from  these  prem 
ises  that  no  Federal  court  which  presumes  to  differ  from  them,  either 
on  a  profound  question  of  constitutional  law  or  on  a  sharp  point  of 
special  pleading,  can  exercise  the  authority  given  to  it  by  the  Consti 
tution  and  laws  of  the  Union.  Upon  this  principle  it  is  manifest  that 
the  laws  of  the  United  States  can  never  be  executed  except  by  the 
grace  and  favor  of  the  State  courts,  and  such  grace  is  never  to  be  given 
when  they  disagree  in  opinion. 

You  have  no  jurisdiction  when  the  State  judges  think  you  exer 
cise  it  erroneously.  No  jurisdiction  !  One  blast  upon  that  ram's  horn 
and  the  whole  structure  of  judicial  authority  built  up  by  this  Govern 
ment  comes  tumbling  about  our  ears  like  the  walls  of  Jericho. 

The  Constitution  declares  that  the  Federal  courts  shall  try  all  of 
fenses  against  the  laws  of  the  United  States  ;  and  Congress  has  given 
exclusive  jurisdiction  of  Booth's  offense  to  the  District  Court.  No  law, 
State  or  national,  has  authorized  the  Supreme  Court  of  Wisconsin  to 
intermeddle  with  the  business  in  any  one  way  or  another.  Yet  the 
latter  court  asserts  its  own  jurisdiction  and  denies  that  of  the  Federal 
tribunal.  The  logic  by  which  the  judges  bring  about  this  strange 
bouleversement  of  the  law  is  curious  to  look  at.  The  first  thing  they 
do  is  to  assume  that  their  opinion  is  conclusive — "  the  end  all  and 
the  be  all "  of  the  whole  matter.  Next  they  decide  that  the  District 
Court  is  without  authority,  and  its  judgment  a  nullity.  Thence  they 
come  back,  as  the  surveyors  would  say,  to  the  place  of  beginning, 
and  conclude  that  inasmuch  as  the  Federal  court  has  no  power  they 


422  FORENSIC. 

themselves  have  all  power.  Their  language  to  the  Federal  judge  is 
substantially  this  :  "We  admit  that  the  validity  of  our  judgment  de 
pends  on  yours  being  void,  but  yours  is  void  because  ours  is  valid  ;  and 
when  we  pronounced  our  valid  judgment,  we  said  yours  was  void." 
Logicians  have  told  us  that  reasoning  in  a  circle  proves  nothing.  But 
here  it  has  been  used  as  a  means  of  proving  what  could  not  possibly 
be  proved  in  any  other  way. 

If  this  power  were  conceded  to  the  State  courts,  it  would  never 
be  grossly  abused  by  any  judge  who  acknowledges  the  principle  of 
stare  decisis.  But  in  this  case  all  authority  was  trampled  under  foot. 
That  public  wisdom  which,  in  every  country,  is  made  the  rule  of  civil 
conduct  for  the  very  purpose  of  supplying  the  deficiencies  of  individ 
ual  judgment,  is  treated  with  contempt,  and  in  its  place  is  substi 
tuted  a  mere  private  notion,  which  each  judge  carries  about  in  his 
own  breast.  No  matter  whether  he  got  it  from  a  stump-speech  or  a 
partisan  newspaper,  or  whether  it  be  an  original  crotchet  of  his  own 
brain,  if  it  be  his  own,  either  by  adoption  or  birth,  that  fact  alone 
immediately  consecrates  it  and  makes  it  the  supreme  law  of  the  land, 
so  far  as  he  has  anything  to  do  with  the  administration  of  it.  The 
evil  effect  of  departing  from  the  settled  law,  and  putting  up  private 
opinion  as  a  standard  of  .decision,  was  never  so  palpable  as  it  is  in  this 
case.  Here  was  a  rule  of  constitutional  interpretation,  acted  on  by 
the  Father  of  his  Country,  and  by  all  his  successors  ;  approved  by 
the  second  Congress  that  assembled  under  the  Constitution  and  by 
every  succeeding  Congress ;  affirmed  directly  or  indirectly  by  every 
judge  that  ever  sat  on  this  bench,  and  by  all  the  Federal  judges  of 
the  country ;  approved,  moreover,  by  every  State  court  (except  that 
of  Wisconsin)  in  which  it  was  ever  questioned ;  and  all  the  people 
have  said  "so  be  it."  This  rule,  so  sanctioned,  so  approved,  so  sus 
tained  by  every  branch  of  the  Government,  and  by  all  classes  of  peo 
ple — this  is  the  rule,  which  the  court  below  repudiated.  Why,  it 
will  stand  the  test  of  orthodoxy  which  St.  Augustine  applied  to  the 
creed  of  the  church — quod  semper,  quod  ubique,  quod  ab  omnibus 
creditum  est.  Whosoever  opposes  his  sole  opinion  to  such  an  article 
in  the  judicial  faith  of  the  country,  must  needs  be  a  promoter  of 
heresy,  disorder,  and  schism  to  the  whole  extent  that  his  power  can 
go.  We  are  in  the  habit  of  speaking  about  legal  authorities  under 
the  figure  of  a  stream.  When  they  are  numerous,  decisive,  and  strong, 
we  call  it  a  current.  There  is  no  current  of  authority  here,  but  a 
torrent,  rolling  forward  impetuously  as  the  waters  of  the  Niagara 
River,  and  pressed  from  behind  by  all  the  waters  of  the  lake.  And 
here  stand  one  or  two  men  on  the  shore  who  try  to  roll  it  back  by 
throwing  their  handful  of  sand  in  it.  But  the  mighty  torrent  still 
thunders  onward. 

Labitur  et  Idbetur  in  omne  volubilis  avum. 


FORENSIC.  423 

Still,  perhaps  everywhere,  except  in  Wisconsin,  we  might  manage 
to  get  on  in  some  sort  of  fashion  if  this  power  were  confined  to  the 
Supreme  and  Superior  Courts — to  those  who  occupy  the  highest  posts 
in  the  State  judiciary.  But  it  is  claimed  as  a  mere  incident  to  the 
law  of  habeas  corpus,  and,  therefore,  any  judge  who  can  issue  a  habeas 
corpus  can  do  everything  that  was  done  by  the  Supreme  Court  of  Wis 
consin.  In  most  of  the  Western  States  the  power  of  issuing  such 
writs  is  given  to  the  probate  judges,  whose  most  important  business 
it  is  to  settle  administration  accounts,  and  who  may,  or  may  not,  be 
fit  even  for  that.  In  other  States  this  power  is  wielded  by  the  associate 
judges  of  the  Common  Pleas,  whose  general  duty  it  is  to  sit  beside 
the  president  during  term-time,  and  do  nothing  at  all.  They  are 
almost  universally  respectable  men  in  their  way,  but  nobody  supposes 
that  any  great  amount  of  legal  talent  is  wasted  upon  that  office. 
Your  honors  see  very  well,  that,  according  to  the  Wisconsin  doctrine, 
the  highest,  and  the  most  elevated,  and  the  most  learned  of  the  Feder 
al  judges  is  completely  subordinated  to  the  lowest,  the  most  preju 
diced,  and  the  least  educated  of  all  the  State  judges,  and  that,  too,  on 
questions  of  national  law.  A  judge  appointed  by  the  proper  organs 
of  the  national  Government,  responsible  to  the  public  opinion  of  the 
whole  nation,  triable  before  the  representatives  of  all  the  States  for 
any  offense  he  may  commit  in  office — he  is  placed  in  total  subjection 
to  some  other  judge,  who  owes  no  responsibility  to  anything  but  the 
popular  sentiment  of  a  single  county.  If  this  were  acted  on  but  a 
little  while,  our  judicial  system  would  acquire  a  mode  of  progression 
like  nothing  J  ever  heard  of,  except  Cotton  Mather's  snake — a  very 
curious  specimen  of  natural  history,  which,  he  said,  he  discovered  in 
Massachusetts,  and  which  he  described  as  "  a  serpent  which  goeth 
one  while  with  its  head  foremost,  and  one  while  with  its  tail  fore 
most." 

Suppose  one  of  your  honors  to  be  sitting  in  the  Circuit  Court  and 
trying  a  party  accused  of  some  grave  crime  against  the  laws  of  the 
United  States — piracy,  murder  upon  the  high  seas,  the  offense  of 
importing  captured  Africans  into  the  United  States  or  exporting 
stolen  slaves  into  Canada — it  matters  not  what  you  suppose  it  to  be. 
In  the  course  of  the  trial  the  constitutional  validity  of  a  statute  is 
denied,  its  construction  is  doubted,  or  the  correctness  of  the  pleading 
under  it  is  impugned.  You  are  not  to  decide  these  questions.  It  is 
not  worth  while  for  the  counsel  to  argue  the  case  to  you  ;  but  if  there 
should  happen  to  be,  among  the  spectators  in  a  corner  of  the  court 
house,  a  probate  judge  of  the  county,  let  them  address  him  ;  for  he 
is  the  judge  of  last  resort.  You  need  not  charge  the  jury.  The  ver 
dict,  if  it  be  a  verdict  of  guilty,  will  not  stand  a  moment  before  the 
omnipotence  of  a  habeas  corpus.  Charge  the  judge  in  the  corner  ;  for 
if  you  do  not  convince  him,  he  will  mount  his  habeas  corpus  and  charge 


424:  FORENSIC. 

down  upon  you.  And  he  is  an  adversary  that  you  can  not  possibly 
cope  with.  One  blow  from  him  will  knock  your  proceedings  all  to 
pieces.  One  word  of  his  will  paralyze  your  power.  If  he  but  breathes 
upon  your  judgment  he  melts  it  into  nothing.  Even  if  you  convince 
him,  perhaps  you  have  not  done  the  tithe  of  the  work  you  have  yet  to 
do.  There  may  be  a  score  of  other  judges  in  the  neighborhood  having 
just  as  much  power  over  your  judgment  as  he  has,  and  if  you  do  not 
get  all  of  them  you  may  as  well  have  none.  How  are  you  to  get  them  ? 
Will  you  call  them  together  and  make  a  general  speech  ?  or  will 
you  canvass  them  separately  ?  Their  "most  sweet  voices"  you  must 
have  in  your  favor,  or  else  the  execution  of  the  Federal  laws  will 
become  impossible. 

The  very  reverse  of  this  is  as  necessary  to  the  administration  of 
justice  in  the  State  as  in  the  Federal  courts.  Imagine  two  State  courts 
to  be  sitting  side  by  side,  each  invested  with  its  own  exclusive  juris 
diction  over  different  classes  of  subjects,  but  all  the  judges  of  both 
having  power  to  issue  writs  of  habeas  corpus.  Shall  a  single  judge  of 
one  discharge  the  prisoners  and  set  aside  the  judgments  of  the  other  ? 
They  may  on  the  principles  laid  down  in  this  case.  Nay,  it  is  but 
carrying  the  doctrine  to  its  consequences  to  say  that,  where  a  criminal 
court  consists  of  three,  four,  or  five  judges,  one  of  them,  who  dissents 
from  the  rest  on  a  question  of  law,  may  wait  till  the  term  is  over, 
bring  the  convict  out  from  the  penitentiary,  and  discharge  him,  on 
habeas  corpus,  despite  the  majority. 

This  notion  that  a  judge  who  hears  a  case  on  habeas  corpus  is  not 
restricted  to  his  own  proper  jurisdiction,  is  a  growth  of  the  last  ten 
years.  Within  that  time  great  men  at  the  bar  have  seemed  to  be 
lieve  it  sound  ;  and  now  and  then  a  judge  has  been  found  who  eagerly 
grasped  at  the  opportunity  of  doing  by  habeas  corpus  what  the  law 
forbade  him  to  do  in  any  other  way.  Six  or  seven  years  ago,  a  man 
who  was  arrested  in  Ohio,  for  embezzling  public  money  in  California, 
was  taken  out  of  the  hands  of  the  Federal  authorities  by  a  State  judge, 
and  to  this  day  he  runs  at  large  un whipped  of  justice.  It  was  a  griev 
ous  outrage  on  the  authority  of  this  Government,  and  it  ought  to  have 
been  condignly  punished.  Some  time  afterward  a  marshal  in  Ohio, 
who  had  a  prisoner  in  his  custody  under  process  of  the  Circuit  Court, 
was  served  with  a  habeas  corpus  commanding  him  to  bring  that  same 
prisoner  before  a  State  judge.  The  marshal  could  not  obey  the  habeas 
corpus  without  disobeying  the  other  process,  which  he  knew  to  be  le 
gally  binding.  The  next  place  he  found  himself  was  in  the  custody 
of  a  sheriff,  and  he  was  on  the  point  of  being  sent  to  jail  for  doing  his 
duty,  when  Mr.  Justice  McLean  threw  the  shield  of  his  protection 
over  him  and  pronounced  all  the  proceedings  of  the  State  judge  to  be 
entirely  void.  In  1857  it  seemed  as  if  a  civil  war  was  about  to  break 
forth  in  Ohio,  by  reason  of  an  effort  which  the  State  officers  made  to 


FORENSIC.  425 

thrust  themselves  between  the  Federal  authorities  and  certain  persons 
who  had  committed  crimes  against  the  United  States.  The  history  of 
this  transaction  is  known  to  the  court.  It  is  also  known  how  the  Ohio 
Legislature  has  virtually  abolished  the  old  writ  of  habeas  corpus — the 
writ  made  sacred  and  perpetual  by  the  solemn  words  of  the  Constitu 
tion — and  supplied  another  thing,  which  serves  as  a  mere  excuse  to  res 
cue  and  re-capture  prisoners  who  are  detained  in  lawful  custody.  But 
no  Supreme  Court — no  court  of  any  kind,  whose  opinions  are  thought 
by  itself  to  be  worth  reporting — has  taken  the  ground  on  which  the 
Wisconsin  court  planted  itself  in  this  case. 

All  laws  made  for  the  general  welfare  of  a  country  so  large  as 
ours,  and  for  the  protection  of  rights  so  diversified,  must  necessarily 
encounter  some  local  unpopularity.  It  was  always  so  from  the  origin 
of  the  Government.  But  in  the  earlier  and  better  days  of  the  Repub 
lic,  this  mode  of  opposing  them  was  not  thought  of.  In  1796  the  ex 
cise  duty  on  distilled  spirits  was  believed  in  Western  Pennsylvania 
to  be  not  only  oppressive  but  unconstitutional.  But  the  men  of  that 
day  threw  themselves  back  on  the  moral  right  of  revolution,  and  op 
posed  the  obnoxious  law  with  arms  in  their  hands.  They  never  dreamed 
of  carrying  on  the  "Whisky  War"  by  firing  off  writs  of  habeas 
corpus  at  the  Federal  authorities.  Two  years  afterward  there  was  a 
strongly-marked  division  of  sentiment  on  the  constitutional  validity 
of  the  Sedition  Law.  There  was  but  one  man  in  the  country  who 
thought  of  asking  relief  at  the  hands  of  a  State  judge.  The  precedent 
was  not  thought  a  fit  one  to  be  followed,  and  Mr.  Sergeant's  research 
alone  has  saved  it  from  total  oblivion.  Callender  and  Lyon  and 
Cooper  served  out  their  time,  and  paid  their  fines,  or  waited  the  advent 
of  a  new  Administration.  At  a  later  period,  when  nullification  arose 
in  South  Carolina,  the  people  of  that  State  assembled  in  convention, 
and  abrogated  the  tariff  act  by  a  solemn  Ordinance.  This,  according 
to  their  theory,  wiped  it  from  the  statute-book  as  completely  as  if  it 
had  been  repealed  by  Congress.  Then  they  authorized  resistance  to 
it,  and  judges  might  oppose  it  by  habeas  corpus  and  homine  replegiando 
on  the  same  principle  that  a  private  citizen  could  oppose  it  with  pike 
and  gun.  We  all  remember  the  great  debate  in  the  Senate  on  this 
subject.  Mr.  Webster  won  his  victory,  so  far  as  it  was  a  triumph  of 
logic  and  of  law,  by  pressing  this  very  point  upon  his  adversary. 
"How,"  said  he,  "will  you  release  yourselves  from  the  grasp  of  the 
Federal  judiciary  ?  "  But  the  victory  would  have  been  on  the  other 
side,  if  General  Hayne  could  have  ans-wered  that  the  State  judges  had 
a  right  to  take  every  case  into  their  own  keeping  by  means  of  the 
habeas  corpus.  He  could  not  say  so  ;  he  was  too  wise  a  man  to  believe 
it,  and  too  honest  to  say  what  he  did  not  know  to  be  true.  President 
Jackson,  in  his  proclamation,  used  the  same  unanswerable  argument. 
The  truth  is,  that  the  exclusive  authority  of  the  Federal  judges  to 


426  FORENSIC. 

decide  all  cases  arising  under  the  Federal  laws  was  the  lion  in  the 
path  of  nullification.  It  saved  the  country  from  dismemberment 
then,  and  no  one  knows  the  day  nor  the  hour  when  it  may  be  neces 
sary  to  invoke  it  again  for  the  same  purpose .  When  it  ceases  to  be 
maintained,  the  Union  of  the  States  will  become  a  rope  of  sand. 

The  highest  tribunals  of  the  States  (that  of  Wisconsin  always  ex- 
cepted)  have  uniformly  refused  to  adopt  this  wild  notion  of  their 
power  over  the  Federal  laws.  It  was  distinctly  repudiated  by  the 
Supreme  Court  of  Massachusetts,  in  Simms's  case  ;  by  that  of  New 
York,  in  Prime's  case  ;  and  by  that  of  Pennsylvania,  in  Williamson's 
case.  It  had  been  exploded  long  before  by  Judge  Cheves,  of  South 
Carolina,  in  an  opinion  of  singular  brevity,  clearness,  and  force. 

But  there  is  one  authority  on  this  subject,  to  which  I  beg  your 
special  attention.  What  I  refer  to  is  an  act  of  the  Wisconsin  Legis 
lature,  in  which  the  judges  of  that  State  are  plainly,  expressly,  and 
unequivocally  forbidden  to  do  the  very  things  which  were  done  in  both 
these  cases.  The  statute  declares  that  no  habeas  corpus  shall  be  al 
lowed  to  any  person  who  is  detained  in  custody  under  process  issued 
by  a  Federal  court  or  judge  having  exclusive  jurisdiction  of  the  offense 
therein  charged,  nor  shall  such  writ  be  allowed  to  one  who  is  detained 
under  the  final  sentence  or  judgment  of  any  court  of  competent  juris 
diction. 

Mr.  JUSTICE  GRIER. — Was  that  statute  in  force  at  the  time  of  this 
decision  ?  Perhaps  it  was  enacted  since. 

ATTORXEY-GEKERAL  BLACK. — It  was  in  full  force  at  the  time. 
The  decision  of  the  court  was  in  flat  opposition  to  it.  The  judges  saw 
it,  met  it  full  in  the  face,  quoted  it,  and  did  not  pretend  to  misun 
derstand  it.  •  They  knew  it  to  be  as  perfect  a  prohibition  as  the  Leg 
islature  could  make  of  their  whole  proceeding.  Will  your  honors 
believe  me,  when  I  tell  you  what  reason  they  gave  for  disregarding  it  ? 
They  said  it  was  unconstitutional  !  They  not  only  asserted  their 
own  authority  to  resist  the  execution  of  Federal  laws,  and  set  aside 
the  judgment  of  a  Federal  court,  but  they  denied  the  power  of  their 
own  Legislature  to  confine  them  within  the  sphere  of  their  proper 
duties. 

I  suppose  I  have  said  enough  to  show  that,  whatever  the  law  upon 
the  subject  may  be,  the  Supreme  Court  of  Wisconsin  is  decidedly  not 
the  place  to  look  for  a  sound  exposition  of  it.  I  submit  that  the 
propositions  of  the  brief  are  true,  and  sustained  by  the  authorities 
cited.  I  shall  refer  to  them  severally. 

I.  The  judges  were  guilty  of  a  criminal  contempt  in  refusing  to 
send  up  their  record.  On  this  I  have  nothing  further  to  say  beyond 
a  reference  to  the  books.  (2  Coke  Inst.,  425-27 ;  4  Jurist,  190  ;  Act 
1789,  sec.  17  ;  Act  2,  March,  1831.) 


FORENSIC.  427 

II.  The  act  of  1850  for  the  extradition  of  fugitives  from  labor  is 
constitutional,  binding,  and  valid.     This  has  been  denied  on  three 
grounds  :   1.  Congress  had  no  power  to  legislate  on  the  subject.     2. 
There  is  no  provision  for  the  trial  of  a  fugitive  by  jury.     3.  Commis 
sioners  are  part  of  the  machinery  to  be  employed  in  executing  it.    The 
two  first  of  these  points  have  been  so  often  decided  here  and  elsewhere 
that  this  court,  on  several  recent  occasions,  have  admonished  counsel 
that  they  were  no  longer  regarded  as  open  to  argument.     The  third  is 
equally  well  settled  ;  but  at  first  blush  it  has  something  about  it  a  lit 
tle  more  plausible.     The  argument  on  the  wrong  side  is  this  :    The 
judicial  power  of  the  United  States  is  given  by  the  Constitution  to  the 
Supreme  and  other  courts,  of  which  the  judges  shall  be  appointed  in  a 
certain  way,  and  hold  their  commissions  during  good  behavior.    Com 
missioners  exercise  judicial  functions,  and  are  therefore  judges.     But 
they  are  not  appointed  in  the  way  prescribed  by  the  Constitution  for 
the  appointment  of  judges,  nor  do  they  hold  their  offices  during  good 
behavior.     The  vice  of  this  argument  consists  in  the  assumption  that 
commissioners  are  judges  merely  because  they  sometimes  exercise 
powers  which  the  judges  themselves  might  exercise  without  them.     A 
judge  may  commit  to  prison,  take  a  recognizance  of  bail,  administer 
an  oath,  investigate  the  facts  of  a  cause,  and  deliver  into  the  proper 
custody  a  fugitive  from  justice  or  labor.     But  it  does  not  follow  from 
this  that  he  may  not  delegate  the  power  to  a  clerk,  examiner,  master 
in  chancery,  auditor,  commissioner,  or  other  assessor.     These  are  but 
servants  of  the  court,  not  judges.     Their  decisions  can  determine  no 
ultimate  right,  and  are  never  conclusive  either  upon  the  court  which 
appoints  them  or  any  other. 

The  same  rule  of  constitutional  interpretation  which  forbids  the 
courts  to  appoint  officers  necessary  for  them,  would  require  Congress 
to  exercise  directly  all  legislative  power.  Then  Congress  must  sit 
every  day  as  a  town  council  for  "Washington  and  Georgetown.  The 
executive  power  being  given  to  the  President,  he  must  collect  all  the 
revenues  and  pay  them  out  in  his  proper  person  ;  command  the  army 
and  navy  without  the  aid  of  subordinates  ;  defend  the  country  by  his 
individual  prowess ;  and  put  down  every  insurrection  with  his  own 
right  hand. 

But  this  reductio  ad  absurdum  was  hardly  needed,  for  the  cases  I 
refer  to  are  more  than  enough  to  put  every  constitutional  objection  to 
the  act  of  1850  at  rest  forever.  (5  How.,  230  ;  14  How.,  13  ;  16  Barb., 
268  ;  7  Cush.,  285  ;  5  McL.,  469  ;  2  Pick.,  11  ;  5  S.  &  E.,  62  ;  12 
Wend.,  311  ;  4  W.  C.  C.  E.,  327  ;  16  Peters,  539  ;  1  Bald.,  571 ;  3 
Liv.  Law  Mag.,  386  ;  18  How.,  972.) 

III.  But  the  judgment  of  the  District  Court,  even  if  it  had  been  er 
roneous,  was  absolutely  conclusive.     Being  a  court  not  only  of  compe- 


428  FORENSIC. 

tent  but  of  exclusive  jurisdiction,  no  question  of  law  or  fact  which  was 
or  might  have  been  raised  on  the  trial  can  afterward  be  examined 
either  directly  or  collaterally  between  the  same  parties  in  another 
court.  Here  was  an  offender  against  the  United  States  who  enter 
tained  some  new  and  curious  views  of  the  statute  which  defined  his 
crime.  He  says  the  Constitution  protects  him  from  the  operation  of 
such  a  law  ;  by  his  construction  of  it  he  is  not  within  its  meaning  ; 
and  (what  is  worse  than  all)  there  is  a  flaw  in  the  indictment.  On 
these  acute  propositions  he  bases  his  claim  to  impunity,  and  his  proper 
judge,  whoever  that  may  be,  must  determine  whether  his  defense  is 
false  or  true.  Who  is  his  proper  judge  ?  The  Constitution  and  laws 
of  the  United  States  declare  the  sole  authority  over  the  subject-mat 
ter  to  be  in  the  District  Court,  and  that  court  pronounces  his  defense 
unsound  in  law.  Thereupon  he  appeals  by  habeas  corpus  to  another 
court,  which  all  law,  both  State  and  national,  has  forbidden  to  take 
cognizance  of  the  matter  ;  and  this  latter  court,  in  defiance  of  the  pro 
hibition,  not  only  re-examines  the  cause,  but  enlarges  the  convict  and 
sends  him  abroad  to  commit  the  same  offense  again. 

The  rule  of  law  which  made  the  judgment  of  the  District  Court 
conclusive  in  this  case  upon  all  the  points  which  were  here  re-exam 
ined  in  the  State  court,  is  so  clearly  defined,  so  universally  acknowl 
edged,  so  well  settled,  so  necessary,  and  so  wise,  that  if  I  had  not  seen 
this  record,  I  should  have  been  willing  to  affirm  that  no  judge  in 
America  had  ever  denied  or  ever  would  deny  it.  It  is  laid  down  in 
all  the  horn-books  of  the  law ;  and  I  make  some  citations  merely  to 
show  how  strangely  the  authorities  have  been  overlooked  :  (Dutchess 
of  Kingston's  case,  St.  Trials,  2  Smith's  Leading  Cases — note ;  5  C. 
B.  Rep.,  418  ;  14  Q.  B.  R.,  566 ;  6  Q.  B.  R,  666 ;  57  Eng.  C.  L.  R. 
216;  Cro.  Car.,  168;  1  Barb.,  240;  26  Penn.  St.  Rep.,  9;  Stat.  of 
Wis.,  Hab.  Corp.;  1  Curtis  Com.,  155-'56-'57 ;  Serg.  Con.  Law,  277; 
1  Kent,  319  and  419  ;  2  Story  on  Const.,  sec.  1756-'57  ;  "Federalist," 
Nos.  30  and  81 ;  Rhodes's  case  cited,  Searg't,  284 ;  2  Wai.,  Jr.,  536.) 

IV.  When  a  party  accused  or  convicted  of  an  offense  against  the 
United  /States  is  in  tJie  custody  of  the  proper  Federal  officers,  all  pro- 
cess  issued  ly  State  judges  to  take  Mm  out  of  such  custody  is  void,  and 
the  Federal  officers  may  lawfully  disregard  it.  Surely,  when  a  judge 
or  other  officer  of  the  United  States  is  engaged  in  a  duty  confided  to 
him  by  the  Constitution  and  laws,  another  judge  who  is  wholly  desti 
tute  of  jurisdiction  can  not  thrust  himself  into  the  business.  No 
country  in  the  civilized  world  permits  the  administration  of  justice  to 
be  baffled  and  obstructed  in  that  way.  All  process  intended  for  that 
purpose,  or  calculated  to  have  that  effect,  must  necessarily  be  void. 
When  a  Federal  officer  is  commanded  by  his  own  court  to  do  one  thing, 
and  a  State  judge  commands  him  to  do  another,  he  can  not  obey  both. 


FORENSIC.  429 

It  admits  of  no  doubt  that  in  such  a  case  he  is  bound  to  execute  the 
process  which  is  legal,  until  he  is  prevented  by  physical  force.  There 
may  be  cases  in  which  it  would  be  prudent  to  yield  the  right  rather 
than  provoke  a  collision  and  excite  the  passions  which  such  a  collision 
would  kindle.  But  it  is  not  the  point  of  prudence  which  you  are 
called  on  to  decide ;  it  is  the  question  of  law.  What  is  the  legal  right 
and  duty  of  an  officer  so  situated  ?  Your  answer,  I  confidently  trust, 
will  be  that  he  is  bound  to  execute  the  legal  writ,  if  it  be  possible ; 
that  he  must  not  voluntarily  abandon  his  duty ;  that  the  mere  service 
of  a  bogus  writ  upon  him  is  no  excuse  for  surrendering  a  prisoner 
whom  he  is  required  to  keep  safely.  If  the  prisoner  be  forcibly  taken 
out  of  his  hands,  that  is  another  thing.  That  is  a  rescue ;  and  all 
concerned  in  it  (including  the  judge  who  ordered  it)  may  be  dealt  with 
accordingly. 

I  claim  nothing  for  the  Federal  courts  which  is  not  habitually  con 
ceded  to  the  State  courts.  Both  are  equally  independent  in  their  re 
spective  spheres.  Every  judicial  officer,  acting  within  his  jurisdiction, 
is  an  organ  of  the  law,  and  the  highest  can  not  irregularly  interfere 
with  the  lowest.  A  justice  of  the  peace  is  entitled  to  as  much  respect 
as  the  Chief-Justice  of  the  United  States.  Of  course,  I  do  not  mean 
that  involuntary  homage  which  we  all  pay  to  the  highest  intellect  com 
bined  with  the  purest  integrity,  but  the  legal  obedience  which  is  due 
to  every  judge  who  confines  himself  to  the  duty  assigned  him  by  the 
law.  When  a  valid  and  binding  command  is  issued  by  a  court  of 
competent  jurisdiction  to  its  own  officer,  a  conflicting  order  issued  by 
another  court  which  has  no  jurisdiction  at  all  must  be  void.  This  is 
true  of  courts  established  and  maintained  by  the  same  government. 
It  is,  if  possible,  more  emphatically  true  of  tribunals  differently  ap 
pointed,  administering  a  different  code,  and  responsible  to  a  different 
government.  (1  Mod.,  119;  3  Pet.,  202;  2  Hale  Or.  PI.,  144;  10 
Petersdorf  Abr.,  287 ;  2  Inst.,  615 ;  57  Eng.  0.  L.  E.,  418 ;  2  Ld. 
Eaym.,  1110;  5  Binn.,  514;  Searg.  Con.  Law,  284;  10  Kep.,  76;  15 
Johns.,  152  ;  9  Texas,  319  ;  6  Fost.,  239  ;  5  Barb.,  276.) 

V.  When  an  officer  is  doing  his  duty  in  obedience  to  the  legal  pro 
cess  of  the  court  to  which  he  belongs,  and  an  attempt  is  made  by  an 
other  court  to  punish  him  for  so  doing,  he  is  entitled  to  such  summary 
measures  as  may  be  necessary  for  his  protection.  This  is  true  at  com 
mon  law  and  by  universal  custom.  Suitors,  jurors,  witnesses,  and 
officers  whose  service  or  attendance  is  necessary  to  the  administration 
of  justice  in  one  court,  must  be  free,  while  so  engaged,  from  the  pro 
cess  of  other  courts.  If  a  Federal  officer  can  not  serve  a  writ  or  exe 
cute  a  sentence  without  being  arrested  by  a  State  court  for  doing  so, 
the  judicial  authority  of  this  Government  will  come  to  an  end  very 
soon. 


430  FORENSIC. 

But  I  need  not  argue  this  on  original  principles.  The  act  of  1833 
distinctly  provides  for  the  immediate  and  summary  discharge  of  any 
Federal  officer  so  arrested,  whether  on  civil  or  criminal  process.  In 
Robinson's  case,  Mr.  Justice  McLean  discharged  his  marshal  with  a 
stern  rebuke  to  those  who  had  detained  him  from  performing  his  duty. 
In  Jenkins's  case,  Mr.  Justice  Grier  decided  that  the  capias  on  which 
the  deputy  marshal  had  been  arrested  for  the  offense  of  serving  pro 
cess  of  the  Circuit  Court,  was  wholly  void. 

Mr.  JUSTICE  GRIER. — The  officer  was  arrested  in  that  case  on  a 
criminal  proceeding.  There  was  an  indictment  found. 

ATTORXEY-GEKERAL  BLACK. — The  case,  then,  is  stronger  than  I 
supposed.  In  addition,  I  will  give  you  a  reference  to  the  act  of  March 
2,  1833  ;  Jenkins's  case,  2  Wall.,  Jr.,  521 ;  Ex  Part.  Robinson,  3  Liv. 
Law  Mag.,  386. 

When  these  proceedings  shall  receive  the  solemn  condemnation  of 
this  court,  the  proper  means  will  be  adopted  to  vindicate  the  law  by 
rearresting  the  convict  who  was  enlarged  by  them. 


FOSSATT   vs.  THE    UNITED    STATES    (RANCHO   DE    LOS 
CAPITANCILLOS). 

SUPREME   COUBT   OF   THE   UNITED   STATES. 

May  it  please  your  Honors  : 

THERE  is  nothing  really  in  this  case  which  gives  me  the  slightest 
embarrassment ;  but  certain  occurrences  outside  of  it  have  caused  me 
some  uneasiness.  I  know  very  well  that  the  best  way  to  deal  with 
such  matters  is  to  say  as  little  about  them  as  possible,  and  therefore 
I  shall  not  complain — at  least  not  now. 

Before  the  cause  was  opened,  the  counsel  of  the  claimant,  of  Ber- 
reyesa,  of  Castillero,  and  of  Foster,  all  came  to  the  conclusion  that 
the  United  States,  having  filed  no  exceptions  in  the  court  below,  and 
taken  no  appeal  from  the  decree,  were  not  entitled  to  be  heard  here ; 
certainly  not  for  the  purpose  which  they  avowed  of  reversing  the  de 
cree.  This  opinion  was  of  course  strengthened  when  the  Attorney- 
General,  in  reply  to  a  question  from  the  Bench,  said  that  he  did  not 
know  whether  he  was  appellant  or  appellee.  When  a  gentleman  of  his 
acuteness,  long  experience,  and  great  legal  attainments,  declares  that 
he  is  ignorant  which  side  of  a  cause  he  is  on,  the  inference  becomes 
irresistible  that  he  is  not  on  any  side  at  all.  We  regarded  it  as  a  duty, 
which  we  owed  not  less  to  the  court  than  to  ourselves  and  our  clients, 
to  make  this  state  of  things  known,  so  that  the  argument  could  pro 
ceed  regularly  and  properly  as  in  other  cases,  and  the  real  contest  be 
tween  the  real  parties  be  discussed  by  those  who  truly  represented  them. 


FORENSIC.  431 

But  the  court  decided  to  hear  the  two  gentlemen  who  professed  to 
represent  the  United  States,  and  they  obtained  the  floor.  They  have 
used  the  privilege,  and  one  of  them,  to  my  thinking,  has  abused  it. 
He  has  declared  this  claim  to  be  a  scheme,  a  trick,  a  fraud  upon  the 
just  rights  of  the  United  States ;  a  mere  evasion  of  the  law.  The 
Attorney-General,  by  virtue  of  his  office,  stands  at  the  head  of  the 
American  Bar ;  and  the  present  occupant  of  that  place,  by  his  high 
character  as  a  gentleman  and  a  lawyer,  deserves  to  stand  there.  What 
is  said  by  him,  or  by  his  assistant  with  his  apparent  sanction,  may 
fairly  be  taken  as  the  words  of  truth  and  soberness.  When  a  party 
is  thus  denounced  from  such  a  quarter,  no  judge  who  hears  it  can  be 
blamed  for  feeling  toward. him  a  strong  sentiment  of  dislike  and  hatred. 
You  would  almost  necessarily  suppose  that  there  must  be  at  least  some 
little  truth  in  it ;  some  slight  foundation  for  it.  But  I  take  leave  to 
declare,  that  there  is  nothing  in  this  record  or  out  of  it  which,  in  the 
remotest  manner,  excuses  such  a  charge.  In  the  whole  course  of  this 
struggle  which  has  now  lasted  for  more  than  twelve  years,  I  have  never 
before  heard  the  honesty  of  the  claim  doubted,  or  the  integrity  of  its 
holders  impugned.  Their  worst  enemies  have  always  admitted  that 
they  pressed  their  claim  because  they  believed  it  to  be  sound  and  right. 
They  had  everything  to  inspire  them  with  faith  in  it.  Here  was  a 
grant  which  all  admitted  to  be  genuine  ;  for  land  within  boundaries 
plainly  and  clearly  described.  They  saw  survey  after  survey  made 
according  to  the  claim  of  the  grantee  ;  witness  after  witness  swearing 
that  the  survey  was  right ;  decree  after  decree  pronounced  by  all  the 
judicial  tribunals  having  cognizance  of  the  subject ;  and  finally  they 
saw  this  very  Attorney-General  placing  his  solemn  admission  on  the 
record,  that  the  United  States  had  no  objection  to  it.  Why  should 
they  not  have  faith  in  such  a  title,  so  proved  and  so  admitted  ?  They 
had  faith  and  they  showed  it  by  their  works  ;  for  they  took  the  title 
at  a  larger  price  (more  millions  of  dollars  paid  down  in  solid  gold)  than 
was  ever  before  given  for  a  similar  quantity  of  unimproved  land.  The 
Attorney-General  can  find  no  justification  for  the  charge  of  his  as 
sistant — no  excuse  whatever — not  even  the  low  example  of  a  venal 
pamphleteer,  a  scurrilous  newspaper,  or  the  meanest  retailer  of  false 
and  petty  scandals. 

We  are  here  asking  for  legal  justice ;  and  that  we  expect  to  get, 
neither  more  nor  less,  for  we  are  in  a  court  where  the  scales  are  held 
with  an  even  hand.  We  are  not  begging  favors,  but  demanding  a 
right.  If  we  do  not  show  our  right,  let  our  claim  be  rejected. 

In  the  supplemental  brief  filed  by  us  are  nine  several  propositions 
of  law,  to  three  of  which  I  now  call  the  special  attention  of  the  court. 
They  are  these  : 

1.  That  the  United  States  are  estopped  to  deny  the  correctness  of 
the  survey  by  the  decree  of  1858. 


432  FORENSIC. 

2.  That  the  United  States,  haying  made  no  objections  to  the  sur 
vey  when  it  was  brought  into  the  District  Court  under  the  act  of 
1860,  have  no  right  to  make  objections  here. 

3.  That  the  United  States,  having  taken  no  appeal  from  the  decree 
now  under  revision,  have  no  right  to  be  here,  for  the  purpose  of  re 
versing,  changing,  or  in  any  manner  modifying  it. 

If  these  propositions  be  true,  it  follows  irresistibly  that  the  United 
States  are  here  attempting  to  reverse  the  decree,  without  authority  or 
right.  Are  they  not  true  ?  Who  can  deny  them  ?  Who  has  denied 
them  ?  Vital  as  they  are  to  the  case,  clearly  as  they  define  the  posi 
tion  of  the  Government  to  the  whole  subject,  they  are  passed  over  by 
both  the  Attorney-General  and  his  assistant  in  dead  silence.  You 
heard  no  logic  from  the  former,  no  declamation  from  the  latter,  on 
either  of  the  points.  They  know  them  to  be  incontestable  and  true. 
If  they  are  true,  then  the  United  States  can  not  come  into  this  cause, 
as  they  have  come,  without  walking  over  the  slain  body  of  the  law. 

But  these  gentlemen  have  two  points  of  their  own  ;  one  of  them  is 
stated  by  the  Attorney-General,  and  the  other  by  his  assistant,  and 
they  are  in  direct  conflict  with  one  another.  Mr.  Wills  thinks  that 
all  the  proceedings  in  the  court  below  are  cor  am  non  judice,  being 
unauthorized  by  the  act  of  1860,  and  should  consequently  be  set  aside. 
That  would  leave  us  with  the  decree  of  1858,  and  a  survey  under  it, 
just  where  we  want  it.  Of  course,  nothing  could  suit  our  interests 
better.  But  fidelity  to  my  own  convictions  makes  it  necessary  for  me 
to  declare  that  I  do  not  believe  the  law  to  be  so.  Mr.  Bates,  on  the 
other  hand,  considers  the  proceeding  in  the  District  Court,  under  the 
act  of  1860,  as  being  sufficiently  authorized,  but  expresses  Ms  doubt 
whether  an  appeal  lies  to  this  court.  If  he  can  make  that  doubt  pre 
vail,  then  this  decree,  from  which  we  have  appealed,  is  to  stand,  and 
the  disputed  property  goes  to  Berreyesa.  Upon  his  hypothesis,  one 
private  party  gets  the  mine ;  upon  that  of  his  assistant,  the  other  is 
successful ;  but  in  neither  case  can  the  United  States  be  the  gainer. 

But  Mr.  Bates  is  wholly  wrong.  When  a  doubt  exists  about  the 
right  of  a  citizen  to  appeal,  that  doubt  is  always  to  be  resolved  in 
favor  of  the  right.  The  right  of  appeal  to  the  highest  judicial  tribu 
nal  of  the  country  is  a  sacred  right,  like  that  of  trial  by  jury  in  a 
common  law  case,  which  is  never  denied  upon  doubtful  construction. 
Here  it  is  not  even  doubtful.  The  law  expressly  declares  that  no  appeal 
shall  be  taken  after  six  months.  Does  not  that  imply  that  an  appeal 
taken  before  the  expiration  of  six  months  is  valid  and  good  ?  The 
constant,  universal,  and  unhesitating  construction  given  to  the  law 
by  the  District  Court,  by  all  the  profession  in  California,  by  all  the 
counselors  practicing  in  this  court,  and  by  this  court  itself,  is  suffi 
cient  certainly  to  overbalance  a  mere  doubt  thrown  by  the  Attorney- 
General  into  the  other  side  of  the  scale.  When  he  comes  to  consider 


FORENSIC.  433 

how  he  himself,  the  chief  law-officer  of  the  Government,  and  the  de 
partment  over  which  he  presides,  have  treated  this  law,  I  think  that 
even  his  doubt  will  vanish.  He  has  taken  appeals,  perhaps  a  hun 
dred,  from  cases  precisely  like  this.  Thousands  of  men  interested  in 
those  cases  have  been  compelled  to  follow  them  here  as  appellees. 
Many  of  them,  to  my  certain  knowledge,  have  besought  the  Attor 
ney-General  almost  on  bended  knees,  to  relieve  them  from  the  delay, 
the  expense,  and  the  harassing  vexation  to  which  his  appeals  were 
exposing  them ;  and  he  held  them  tight  under  this  same  law  which 
he  now  says  gave  him  no  right  to  appeal.  He  has  brought  parties 
into  this  court  under  this  law,  and  has  prosecuted  and  pressed  his 
appeals  here,  and,  for  aught  I  know,  has  procured  the  reversal  of 
many.  That  he,  of  all  men,  should  now  deny  the  right  of  appeal, 
is  a  most  ungracious  thing.  It  is  still  worse  that  he  should  deny  it 
in  this  particular  case,  where  he  has  no  interest,  and  where  the  effect 
of  his  denial,  if  sustained  by  the  court,  would  be  merely  to  establish 
a  division-line  between  the  private  proprietors,  which  line  he  him 
self,  in  his  brief  and  his  speech,  denounces  as  wrong  and  unjust. 

I  suppose  it  is  expected  of  me  that  I  should  reply  to  the  argu 
ments  made  by  the  United  States,  as  well  as  by  the  other 'parties. 
Perhaps  it  is  my  duty  to  my  clients  and  to  the  court,  not  simply  to 
take  my  stand  upon  the  decrees  already  passed,  but  to  go  further,  and 
show  that  those  decrees  are  right.  Though  I  did  not  anticipate  this 
duty  to  be  cast  upon  me,  I  am  ready  and  willing  to  meet  it. 

If  the  case  were  now  before  the  court  just  as  it  stood  before  the 
Land  Commission,  if  no  admission  had  ever  been  made  by  either 
party,  and  there  had  been  no  adjudication  by  any  court ;  if  it  were 
open  in  all  respects  to  be  considered  upon  its  original  merits — then 
only  one  question  of  law  could  be  raised  in  it ;  and  that  one  question 
is  whether  the  judicial  authorities  of  the  country,  in  ascertaining  the 
location  and  boundaries  of  private  land,  are  to  be  governed  by  the 
calls  of  the  grant,  or  whether  the  lines  as  described  in  the  title-papers, 
are  to  be  altogether  set  at  naught  and  disregarded.  That,  I  say,  is  the 
one  question  of  law  ;  and  it  is  really  no  question  at  all.  I  think,  too, 
we  all  are  agreed  on  that.  Certainly  the  claimant  does  not  ask  of  this 
court  one  foot  of  land  that  he  does  not  suppose  to  be  covered  by  his 
title.  The  representatives  of  Berreyesa  make  their  claim  upon  the 
same  principle  exactly  ;  and  I  am  glad  to  know  that  Mr.  Bates  is  of 
the  same  opinion.  All  parties  here  agree  that  by  the  calls  of  the  grant 
we  must  stand  or  fall ;  and  certainly  it  is  the  law  of  the  land.  To 
change  a  man's  boundary,  is  to  take  away  a  portion  of  his  property 
and  give  it  to  some  one  else  who  is  not  the  owner  of  it,  or  take  it 
from  a  private  citizen  and  hand  it  to  the  public  without  just  compen 
sation.  If  you  can  do  this  with  a  part  of  a  man's  property,  you  may 
take  the  whole  upon  the  same  principle.  Then  all  security  to  every 

28 


434  FORENSIC. 

man's  rights  is  gone,  and  everything  is  reduced  to  what  Bob  Eoy 

called — 

"  The  good  old  rale, 

The  simple  plan, 

That  he  shall  take  who  has  the  power, 
And  he  shall  keep  who  can." 

But  that  is  certainly  a  sentiment  which  sounds  better  in  the 
mouth  of  a  Scotch  robber  than  it  would  in  the  opinion  of  an  Ameri 
can  judge. 

Then,  by  the  admission  of  all  parties  (including  the  United  States, 
who  are  not  parties),  we  must  follow  the  calls  of  the  grant.  It  is 
our  right  to  have  the  lines  of  our  land  established  as  the  title-papers 
describe  them  to  be. 

Mr.  BATES. — Clearly.    I  agree  to  that. 

Mr.  BLACK. — Now,  we  have  a  grant  in  which  the  lines  are  described. 
It  is  a  grant  of  certain  lands  bounded  by  certain  natural  objects.  I 
have  not  heard  that  denied.  The  boundaries  that  are  described  in 
the  grant  are  capable  of  being  ascertained  and  run  upon  the  ground. 
That  is  not  only  true  as  matter  of  fact,  but  it  is  undeniable  as  matter 
of  law.  If  the  boundaries,  as  described  in  the  grant  itself,  are  so  ob 
scure  that  they  can  not  be  found  anywhere  on  the  surface  of  the  earth, 
then  we  have  no  grant  at  all,  no  title  of  any  kind  ;  because  the  grant 
in  that  case  would  be  void  for  uncertainty.  If  it  had  been  true,  it 
would  have  been  an  insuperable  objection  to  the  validity  of  the  title, 
and  our  claim  never  could  have  been  confirmed.  But  the  United 
States  have  many  times  admitted,  and  it  has  often  been  adjudicated, 
that  this  grant  was  a  good  and  valid  grant.  That  admission  includes 
the  admission  that  we  have  a  grant  of  land  by  certain  bounda 
ries.  Besides  all  that,  when  the  case  was  in  this  court  the  first 
time,  your  honors,  by  the  mouth  of  Judge  Campbell,  unanimously 
declared  that  the  land  granted  to  Justo  Larios  had  boundaries  on 
three  sides,  which  were  well  defined  by  objects  upon  the  ground, 
and  that  the  fourth  line  was  capable  of  being  ascertained  as  fully  as 
either  of  the  other  three  by  the  simple  process  of  a  survey. 

Then  we  have  a  tract  of  land  for  which  we  have  a  good  title, 
bounded  by  lines  which  may  be  located  upon  the  ground.  It  remains 
only  that  we  ascertain  where  those  boundaries  are.  This  can  not  be 
a  difficult  task.  It  is  but  looking  at  the  calls  of  the  grant,  and  then 
looking  at  the  topography  of  the  ground  upon  which  the  grant  is  to 
be  placed ;  apply  the  one  to  the  other,  and  the  thing  is  done.  Any 
body  that  can  read  may  see  the  calls  of  the  grant.  There  can  be  no 
trouble  about  that.  But  how  the  objects  called  for  stand  upon  the 
ground  is  to  be  ascertained  by  an  examination  of  the  evidence  which 
is  scattered  through  a  record  of  five  hundred  and  fifty  pages.  That 
may  require  some  attention  and  study,  but,  being  carefully  examined, 


FORENSIC.  435 

you  will  reach  a  perfectly  clear  conclusion,  for  the  evidence  is  not  in 
the  least  contradictory.  Indeed,  this  is  a  subject  upon  which  you 
would  not  expect  the  witnesses  to  be  in  conflict  with  one  another.  To 
swear  away  the  hills  and  the  mountains  and  the  streams  is  a  task  that 
perjury  would  scarcely  undertake,  and  certainly  would  not  accom 
plish  ;  for  if  one  individual  should  make  a  misrepresentation  of  such 
a  fact,  he  would  be  put  to  open  and  manifest  shame  by  the  production 
of  twenty  others,  who  would  contradict  him  by  proving  the  truth. 
Every  fact,  upon  which  we  rely  as  showing  where  our  lines  are,  is 
established  so  conclusively  that  every  judge  can  safely  rest  his  con 
science  upon  it. 

Within  the  limits  of  an  argument,  you  will  not  expect  me  to  take 
up  all  the  testimony  in  detail.  I  can  but  state  to  you  what  the  gen 
eral  result  is  as  candidly  and  as  fairly  as  possible  ;  knowing  very  well 
that  if  I  overstate  or  understate  anything,  it  will  be  so  much  against 
me  and  nothing  in  my  favor ;  for  you  will  verify  what  I  say,  or  falsify 
it,  as  the  case  may  be,  by  your  own  examination  of  the  record. 

This  land  lies  about  fifteen  miles  south  from  the  southern  end  of 
the  Bay  of  San  Francisco.  It  is  very  considerably  higher  than  the 
waters  of  the  bay.  The  whole  country,  from  the  foot  of  the  Sierra 
Azul  down  to  the  bay,  is  an  irregular  mountain  slope.  In  going  from 
the  bay  to  the  land  in  controversy,  if  you  follow  the  principal  water 
courses,  you  rise  gradually  at  the  rate  of  about  seventy-five  or  one 
hundred  feet  to  the  mile ;  but  if  you  want  to  go  directly  over  the 
country,  the  way  the  crow  flies,  you  must  cross  a  succession  of  hills 
and  hollows  ;  each  hill  that  you  come  to  being  a  little  higher  than  the 
one  you  left  behind,  and  each  hollow  being  also  more  elevated  than 
the  one  you  have  just  passed  ;  and  through  each  of  those  hollows  there 
runs  a  stream.  Thus  you  go  on,  until  you  come  to  the  top  of  the 
Pueblo  Hills,  where  you  stand  about  one  thousand  feet  above  the  level 
of  the  bay  and  overlook  the  land  in  controversy. 

Continuing  your  course  southward,  you  go  down  a  rather  rapid 
descent  for  four  or  five  hundred  feet,  and  you  find  yourself  on  the 
banks  of  the  Alamitos  Creek.  Crossing  that  creek,  you  immediately 
begin  to  ascend  again,  not  rapidly,  but  quite  gently,  for  half  or  three 
quarters  of  a  mile,  when  the  acclivity  becomes  considerable  and  in 
creases  until  you  get  to  the  top  of  what  are  called  the  Lomas  Bajos — 
the  low  hills — the  mining  ridge — the  cucliilla  de  la  mina.  That  is  a 
range  of  hills  extending  eastward  and  westward  for  five  and  a  quarter 
miles,  and  having  an  average  height  of  from  twelve  to  fourteen  hun 
dred  feet  above  the  level  of  the  sea.  It  is,  therefore,  as  much  as  three 
or  four  hundred  feet  higher  than  the  Pueblo  Hills.  Thence  south 
ward  the  descent  is  rapid,  until  you  come  to  another  valley,  not  so 
wide  and  not  so  low  as  that  just  passed,  but  like  it  in  all  its  character 
istics.  Indeed,  it  is  part  of  the  same  valley. 


436  FORENSIC. 

This  is  watered  by  the  Capitancillos  Creek.  Cross  that  creek,  and 
you  come  to  the  foot  of  the  great  mountain — the  main  Sierra — the 
Sierra  Azul — which  lifts  up  its  head  nearly  four  thousand  feet  toward 
the  sky.  Of  course,  this  mountain  forms  the  great  feature  of  the  land 
scape.  It  is  visible  in  every  direction  for  nearly  fifty  miles.  There  it 
stands  looming  up  against  the  background  of  the  southern  sky,  and 
limiting  the  horizon  to  every  eye  that  is  raised  in  that  direction.  Of 
all  natural  objects,  this  is  the  one  least  likely  to  be  mistaken  for  any 
other. 

An  absurd  attempt  has  been  made  to  confound  the  mountain  and 
the  low  hills  together.  The  only  reason  ever  given  for  saying  that 
they  are  one  and  the  same  is,  that  they  are  connected  together  by  a 
low  ridge  running  transversely  across  the  valley  which  divides  them. 
It  is  true  that  such  a  ridge  exists,  or  rather  that  the  valley  at  one 
place  is  not  so  much  depressed  as  it  is  at  other  places.  The  ridge  in 
question  is  four  hundred  feet  lower  than  the  low  hills,  and  two  thou 
sand  four  hundred  feet  lower  than  the  mountain.  It  is  a  water-shed, 
on  one  side  of  which  are  the  sources  of  the  Capitancillos,  and  on  the 
other  those  of  the  Alamitos.  The  former  stream  runs  between  the 
low  hills  and  the  mountain,  and  turns  the  western  end  of  the  low  hills. 
The  other  flows  eastward,  and  turns  the  eastern  end  of  the  hills.  The 
two  streams  pass  down  and  meet  together  at  the  northwestern  end  of 
the  valley,  where  they  form  the  Guadalupe  Kiver,  and  through  it  dis 
charge  their  waters  into  the  bay. 

But  does  that  connection  between  the  hills  and  the  mountain  make 
them  one  and  the  same  elevation  ?  Such  connections  between  differ 
ent  elevations  are  so  common  that  it  seems  to  be  a  law.  The  Laurel 
Hill  and  the  Alleghany,  two  parallel  ranges  of  mountains,  are  con 
nected  together  by  the  Negro  Mountain  Kidge,  which  runs  across  the 
valley  between  them,  and  divides  the  waters  of  the  Monongahela  from 
those  of  the  Alleghany  Kiver  ;  but  nobody  has  ever  thought  that  the 
Laurel  Hill  and  the  Alleghany  are  the  same  mountain  for  that  reason. 
The  same  thing  occurs  on  the  eastern  side  of  the  Alleghany.  Wills 
Mountain  runs  in  some  places  close  to  the  Alleghany,  and  the  two  are 
connected  by  a  ridge  which  divides  the  waters  of  the  Potomac  from 
those  of  the  Susquehanna ;  but  Wills  Mountain  and  the  Alleghany 
Mountain  are  not  the  same,  and  have  never  been  confounded  together 
by  anybody  who  had  sense  enough  to  know  a  hill  from  a  hollow. 

As  it  is  with  elevations  of  the  earth's  surface  so  it  is  with  bodies 
of  water ;  they  may  be  connected  together  without  being  the  same 
thing.  The  Atlantic  Ocean  and  the  Mediterranean  Sea  are  connected 
together  at  the  Straits  of  Gibraltar ;  but  no  system  of  geography 
teaches  us  that  the  Island  of  Sicily  is,  therefore,  an  island  in  the  At 
lantic.  The  Golden  Gate  connects  the  waters  of  the  Pacific  with  the 
Bay  of  San  Francisco  ;  but  suppose  a  county  line,  or  the  line  of  a  land 


FORENSIC.  437 

grant,  calls  for  the  ocean  as  its  terminus,  would  any  surveyor  in  his 
senses  think  he  had  responded  to  that  call  by  running  to  the  waters 
of  the  bay  ? 

Those  who  maintain  that  the  mountain  and  the  low  hills  are  the 
same,  use  words  which  are  a  contradiction  of  themselves.  Connection 
between  two  things  does  not  imply  identity,  but  diversity.  When  a 
man  tells  you  that  two  things  are  one  and  the  same  thing,  because 
they  are  connected  by  a  third  thing,  he  talks  that  peculiar  kind  of  non 
sense  which  one  is  always  guilty  of  when  he  does  not  know  what  he 
is  talking  about. 

These  two  elevations,  the  Lomas  Bajos  and  the  Sierra  Azul,  are 
without  doubt  separate  and  distinct  elevations.  The  land  which  lies 
between  the  foot  of  the  Sierra  and  the  foot  of  the  Pueblo  Hills  is 
known  in  the  parlance  of  the  country  as  the  Canada  de  los  Capitan- 
cillos,  or  the  Valley  of  the  Little  Captains.  The  traditional  history 
of  the  country  says  this  name  was  given  after  two  dwarf  Indians,  who 
were  the  chiefs  of  their  tribes,  and  who  had  their  habitation  in  that 
neighborhood.  Even  if  it  were  a  misnomer  to  call  this  a  valley,  does 
that  make  any  difference  ?  The  people  there  understood  themselves 
when  they  called  it  so  ;  and  for  practical  purposes  it  does  not  matter 
whether  the  name  was  scientifically  adjusted  to  the  subject  or  not. 
We  know  what  is  meant  when  a  person  speaks  of  sunrise  and  sunset, 
although  it  be  true,  astronomically,  that  the  sun  neither  rises  nor  sets. 
For  all  purposes  of  common  life,  the  whale  is  called  a  fish,  though 
natural  history  tells  us  that  he  belongs  to  another  order  of  animals. 
If  these  parties  asked  for  the  Canada  de  los  Capitancillos,  meaning  to 
include  all  the  land  up  to  the  mountain,  and  the  Governor  understood 
that  he  was  granting  all  the  land  to  the  mountain,  it  matters  not 
whether,  properly,  it  was  all  valley  land,  or  all  mountain  land. 

But  the  fact  is  that  it  is  a  valley,  and  it  is  but  one  valley.  It  is 
watered  by  these  two  streams,  the  Alamitos  and  the  Capitancillos, 
from  their  sources  on  each  side  of  the  ridge,  already  spoken  of,  to  the 
point  at  which  they  meet  and  form  the  Guadalupe  Kiver.  The  valley 
encircles  the  low  hills.  If  you  desire  to  see  the  whole  of  it,  you  must 
start  at  the  ridge,  travel  down  through  the  valley  along  the  banks  of 
the  Capitancillos  Creek,  turn  to  the  right  around  the  western  end  of 
the  hills,  thence  up  through  the  broader  part  of  the  valley,  keeping 
along  the  course  of  the  Alamitos  Creek,  around  the  western  end  of 
the  hills,  until  you  come  to  the  place  from  whence  you  started  ;  and 
in  that  distance  you  will  not  have  traversed  one  foot  of  land  that  is 
not  properly  valley  land.  You  will  not  have  been  anywhere  out  of  the 
Canada  de  los  Capitancillos,  but  you  will  have  gone  quite  around  the 
Lomas  Bajos,  which  are  in  the  valley 

Somewhere  in  the  valley,  which  I  have  thus  attempted  to  describe, 
lies  a  league  of  land  which  the  government  of  Mexico  granted  to 


438  FORENSIC. 

Justo  Larios.  That  much  is  admitted  to  be  true.  But  it  has  been  a 
subject  of  dispute  whether  the  land  so  granted  lies  next  to  the  mount 
ain  or  down  at  the  Pueblo  Hills,  and  how  far  it  reaches  east  and  west. 
The  call  of  the  grant  is  for  an  eastern  boundary  adjoining  the  western 
line  of  the  grant  made  to  Jose  Keyes  Berreyesa  about  the  same  time, 
and  this  line  is  described  in  both  grants  as  commencing  at  the  junc 
tion  of  the  Arroyo  Seco  and  the  Arroyo  de  los  Alamitos,  running 
thence  southwardly  by  the  eastern  base  of  a  little  hill  (lomita),  and 
onward  by  a  straight  line  to  the  Sierra.  The  southern  boundary,  as 
called  for,  is  the  Sierra.  The  western  is  "the  Arroyo  Seco  on  the  side 
of  the  establishment  of  Santa  Clara,"  which  by  the  admission  of  all 
parties  means  the  Capitancillos  Creek.  There  is  no  call  in  the  grant 
for  any  natural  object  as  denning  the  northern  line.  That  was  mani 
festly  left  open,  because  it  was  impossible  to  say  where  it  could  be  run 
so  as  to  take  in  exactly  a  league.  The  construction  given  to  the  grant, 
by  the  Supreme  Court  and  by  the  District  Court,  locates  the  league 
of  land  upon  the  three  boundaries  expressly  defined  in  the  grant  itself, 
extending  it  northwardly  far  enough  to  include  the  proper  quantity. 
The  true  criteria  for  the  eastern,  southern,  and  western  lines  are  the 
natural  objects  called  for,  and  the  criterion  for  the  northern  line  is  the 
quantity  of  land  granted. 

This  construction  having  been  already  given  to  the  grant  by  de 
crees  which  are  conclusive  between  the  claimant  and  the  United  States, 
it  is  not  necessary  to  go  behind  those  decrees  for  the  purpose  of  show 
ing  that  they  are  right.  But  unquestionably  they  are  right.  The 
grant  itself  describes  the  location  of  the  land  granted.  On  the  south 
it  is  "  colindante  con  la  Sierra."  This  word  colindante  has  as  clear 
and  plain  a  signification  in  the  Spanish  language  as  any  word  in  any 
language  can  have.  It  is  translated  by  the  two  Latin  words  adjacens 
and  contiguus,  which  signify  lying  next  to,  touching  with.  The  ety 
mology  of  the  Spanish  word  itself  shows  very  clearly  what  it  means. 
Linde,  lindano,  lindero,  are  synonymous  terms,  and  mean  always  a 
landmark,  a  boundary.  Co  is  the  latin  cum  and  the  English  "with." 
Colindante  signifies  coterminous,  adjoining.  Two  divisions  of  the 
earth's  surface  which  are  colindantes  must  have  a  common  boundary  ; 
there  can  be  nothing  between  them  but  a  line  which  has  length  with 
out  breadth.  If  Justo  Larios  had  a  league  of  land  colindante  with  the 
mountain,  then  his  land  begins  where  the  mountain  ceases,  and  the 
mountain  ceases  where  his  land  begins.  To  say  that  he  shall  have  any 
other  terminus  or  boundary  on  the  south  than  the  mountain  would  be 
to  take  away  from  him  the  land  that  was  granted.  On  the  east,  he  is 
said  to  be  colindante  with  Berreyesa,  and  for  the  same  reason  he  runs 
to  Berreyesa's  line  on  that  side.  On  the  west  there  is  no  dispute  about 
the  creek  being  the  true  boundary. 

If  his  survey,  as  made  by  the  Surveyor-General  and  asserted  by  the 


FORENSIC.  439 

claimant  to  be  right,  does  run  to  the  mountain  and  not  further  than 
to  the  foot  of  the  mountain,  then,  as  all  parties  have  admitted  from 
the  beginning  of  this  dispute  to  the  present  time,  he  is  no  further 
south  than  he  has  a  right  to  be.  It  has  never  yet  been  asserted  that 
he  can  be  pushed  down  into  the  plain  except  by  showing  that  the 
"Sierra,"  as  described  in  the  grant,  is  the  low  hills,  and  not  the  main 
elevation.  The  controversy  has  always  been  on  the  question  where 
the  mountain  begins,  not  whether  the  Larios  grant  goes  to  the  mount 
ain.  What  did  the  parties  mean,  and  what  did  the  Governor  mean, 
by  the  word  "  sierra,"  when  they  gave  that  as  the  southern  terminus 
of  the  eastern  line,  and  described  it  as  the  boundary  on  the  southern 
side  ? 

It  must  be  perfectly  manifest  to  the  court,  as  it  has  been  to  every 
body  else  who  has  examined  this  case,  that  if  the  eastern  line  be  satis 
factorily  settled  the  other  boundaries  will  adjust  themselves.  If  that 
line,  the  division  between  Larios  and  Berreyesa,  runs  from  the  forks 
of  the  creek  to  the  mountain,  then  the  mountain  becomes  our  south 
ern  limit.  The  western  boundary  is  not  disputed,  and,  as  the  northern 
line  must  be  run  for  quantity,  it  of  course  must  depend  upon  the 
other  three.  So,  therefore,  when  we  settle  the  eastern  line  we  have 
determined  the  whole  dispute.  Accordingly  you  will  find  by  the  rec 
ord  that  every  battle  has  been  upon  the  course  and  the  extent  of  that 
eastern  line.  Berreyesa  desired  that  it  should  be  located  further  to 
the  westward,  and  persons  who  were  in  possession  of  the  hills  desired 
it  to  be  shortened  so  as  to  stop  at  the  foot  of  the  hills  as  if  that  were 
its  true  terminus.  With  these  latter  originated  the  absurd  theory 
that  the  low  hills  were  the  mountain,  because  they  were  connected  with 
the  mountain  by  a  ridge. 

Now,  I  aver  that  this  eastern  line,  which  constitutes  the  whole 
subject  of  dispute,  is  fixed  with  a  perfect  and  absolute  certainty  that 
belongs  to  no  other  land  boundary  in  all  California.  "  I  know  whereof 
I  affirm,"  and  appreciate  the  responsibility  which  I  take  upon  myself, 
when  I  declare  that  there  is  no  farm  in  the  Valley  of  the  Susquehanna 
or  the  Hudson  whose  owner  knows  or  can  know  any  one  of  his  lines 
better  than  this  court  can  know  that  line  when  they  look  at  the  evi 
dence.  Nay,  there  is  not  a  town  lot  in  any  city  of  this  Union,  where 
land  is  worth  a  thousand  dollars  a  foot,  whose  limits  are  open  to  less 
of  fair  and  honest  dispute.  The  line  we  claim  by  has  never  been 
honestly  denied  by  any  one  who  understood  the  subject,  unless  his 
mind  was  wholly  warped  by  prejudice,  or  his  faculties  paralyzed  by 
self-interest. 

The  history  of  that  eastern  line  is  written  down  in  the  title-papers, 
and  it  can  not  fail  to  impress  you  when  you  come  to  read  it. 

Larios  and  Berreyesa  lived  near  to  each  other,  below  the  foot  of  the 
low  hills,  and  not  far  from  the  creek.  They  cultivated  but  little  land, 


44:0  FORENSIC. 

for  the  plain  reason  that  they  had  no  land  which  was  fit  for  cultiva 
tion.  The  hills  were  too  broken  for  the  plow,  and  the  plain  below  the 
hills  was  a  poor,  gravelly,  sandy  soil,  where  all  the  witnesses  concur  in 
saying  that  nothing  could  be  grown.  It  was  so  dry  that  by  the  10th 
of  June  every  spear  of  grass  upon  it  lay  withered  and  dead  upon  the 
ground.  From  June  to  January  it  was  as  destitute  of  herbage  as 
Pennsylvania  Avenue  is  now.  They  lived  upon  the  produce  of  their 
flocks,  as  Job  and  Abraham  and  Saul  and  David  did.  Their  wealth 
consisted  in  the  large  flocks  of  horses  and  cattle  and  sheep  that  roamed 
over  the  hills  immediately  behind  their  residence.  Those  hills  were 
covered  with  a  luxuriant  crop  of  wild  oats,  upon  which  their  cattle 
could  feed  and  fatten  during  the  winter  and  summer. 

Each  of  them  claimed  a  league  of  land,  but  they  had  no  titles 
which  would  stand  the  test  of  judicial  scrutiny.  The  dividing-line 
between  them  had  never  been  legally  established  ;  they  could  not 
prove  where  it  was  ;  neither  could  assert  his  right  against  the  other  ; 
yet  the  land  that  lay  between  their  houses,  and  upon  the  hills  back  of 
their  houses  was  more  valuable  to  them  than  any  other  land  claimed 
by  either.  It  was  the  portion  of  their  land  least  likely  to  be  given  up 
without  a  contest.  Under  these  circumstances,  it  was  the  most  nat 
ural  thing  in  the  world  that  a  dispute  should  arise  between  them 
about  the  division-line.  Accordingly  you  find  that  in  the  spring  of 
1842  something  like  a  quarrel  did  take  place.  This  waked  them  up 
to  the  necessity  of  having  their  domains  legally  defined.  Both  of 
them,  almost  simultaneously,  sent  in  petitions  to  the  Governor,  each 
asking  for  a  grant  to  himself  by  the  boundary  that  he  claimed.  The 
petitions  and  the  disenos  show  what  was  the  subject-matter  of  the 
controversy.  Larios  asked  for  a  line  due  south  from  the  Pueblo  Hills 
to  the  mountain,  running  at  least  a  quarter  of  a  mile  eastward  of  his 
own  residence.  Berreyesa,  on  the  other  hand,  insisted  also  upon  a 
south  line,  but  running  directly  past  the  house  of  Larios,  so  that  Larios 
could  not  put  his  foot  out  of  his  own  door  without  becoming  a  tres 
passer  on  the  land  of  Berreyesa.  The  dispute  then  was  about  a  strip 
of  land  a  quarter  of  a  mile  in  width,  and  extending  three  miles  and  a 
quarter  from  the  Pueblo  Hills  to  the  foot  of  the  Sierra.  In  their  cir 
cumstances,  it  was  worth  a  struggle,  and  the  struggle  resulted  as 
might  have  been  expected  from  the  characters  of  the  two  parties. 

Berreyesa  was  a  very  demonstrative  and  somewhat  overbearing  old 
gentleman.  He  had  been  a  soldier  in  the  earlier  part  of  his  life,  and 
he  carried  some  of  the  habits  of  the  camp  into  his  private  affairs.  He 
boasts  largely  of  his  military  services,  and,  though  he  does  not  tell 
what  battles  or  what  sieges  he  was  in,  what  hair-breadth  escapes  he 
made  by  flood  or  field,  nor  of  being  taken  by  the  insolent  foe,  he  does 
recount,  with  a  great  deal  of  self-complacency,  how  he  rose  from  rank 
to  rank  until  he  reached  the  dignity  of  a  sergeant,  when  he  retired 


FORENSIC.  441 

without  pay  or  plunder,  to  repose  upon  his  laurels.  His  petition, 
where  it  speaks  of  his  neighbor  Larios,  has,  all  through  it,  the  tone  of 
a  bully.  Larios,  on  the  other  side,  was  a  meek  man,  perhaps  a  weak 
one.  At  all  events,  when  he  was  reviled,  he  reviled  not  again.  He 
set  forth  his  purchase  of  the  land  from  Galindo,  and  the  other  grounds 
of  his  demand,  in  a  way  so  modest  and  pretensionless  that  you  can 
hardly  help  thinking  favorably  of  him.  Berreyesa  had  also  the  ad 
vantage  over  him  in  superior  cunning.  Before  he  carried  his  petition 
to  the  Governor  he  armed  himself  with  a  report  from  an  alcalde,  which 
recommended  that  a  grant  be  made  to  him  with  a  line  past  the  house 
of  Larios,  while  Larios  appeared  with  nothing  but  a  naked  statement 
of  his  rights. 

The  Governor  saw  that  this  was  a  serious  dispute  between  two 
colindantes,  and  he  determined  that  it  should  be  settled  in  such  a 
manner  as  to  preclude  future  controversy.  He  therefore  referred  both 
the  petitions,  or  rather  the  subject-matter  of  both,  to  the  Prefect  of 
the  First  District,  the  highest  judicial  officer  in  his  department ;  and 
directed  him  to  call  the  parties  before  him,  to  confront  them  with  one 
another,  to  hear  their  respective  proofs  and  allegations,  to  ascertain 
where  the  line  ought  to  be,  and  to  report  the  result  of  his  investiga 
tions,  so  that  the  grants  might  be  made  in  a  way  that  would  be  just 
to  both  parties.  The  prefect  did  as  he  was  bidden.  The  parties  came 
before  him,  and  he  succeeded  in  conciliating  them.  They  agreed  upon 
a  line.  Larios  was  overborne  by  Berreyesa.  The  line  adopted,  though 
it  was  not  exactly  past  the  house  of  Larios,  was  within  a  few  rods  of 
it.  Berreyesa  got  nineteen  twentieths  of  the  land  in  dispute.  But 
they  were  both  satisfied.  Larios  was  satisfied,  because  it  gave  him 
peace  with  his  domineering  neighbor.  Berreyesa  was  more  than  satis 
fied — it  wrapped  him  up  in  measureless  contentment — because  it  gave 
him  greatly  the  best  of  the  bargain.  They  continued  to  be  satisfied 
ever  afterward.  Three  months  subsequently,  in  another  transaction, 
they  referred  to  their  agreement  before  the  prefect,  as  final  and  bind 
ing.  They  accepted  their  grants  by  that  boundary,  and  no  dispute 
was  ever  heard  of  between  them  afterward  ;  no  trespass  was  committed 
across  the  line  by  themselves,  their  servants,  or  their  cattle.  Each 
could  say  to  the  other,  and  doubtless  Larios  did  say  in  his  heart  to 
Berreyesa,  what  Abraham  said  to  Lot  when  they  divided  the  pasture- 
grounds  on  the  plains  of  Jordan  :  "  Go  thou  to  the  left,  and  I  will  go 
to  the  right ;  and,  I  pray  thee,  let  there  be  no  strife  between  me  and 
thee,  or  between  my  herdsmen  and  thine,  for  we  be  brethren." 

Now,  I  submit  to  the  court  that  it  would  be  one  of  the  strangest 
events  that  ever  occurred  in  the  history  of  human  affairs,  if  it  were 
true  that  this  line  was  not,  after  all,  so  clearly  established  as  to  be  indis 
putable.  It  ran  through  a  region  where  natural  objects  abounded,  by 
which  it  could  be  intelligibly  described.  The  parties  were  perfectly 


442  FORENSIC. 

familiar  with  the  whole  face  of  the  land.  They  desired  to  define  it 
with  perfect  clearness.  They  invoked  the  aid  of  the  publi<?  authorities 
to  assist  them.  They  were  satisfied  that  they  had  succeeded.  The 
prefect  who  advised  them  was  also  convinced  that  he  and  they  both 
understood  where  the  line  was  to  be,  and  so  did  the  Governor.  Can 
it  be  that  they  were  mistaken  ?  Let  us  take  the  description  of  the 
line  which  they  agreed  upon,  and  see  whether  there  is  any  ambiguity 
about  it. 

The  beginning-point  fixed  upon  is  the  junction  of  the  two  creeks. 
About  that  fact  there  has  never  been  any  dispute.  What  was  the 
course  of  it  ?  They  said  it  should  run  from  the  starting-point  south 
ward.  The  legal  meaning  of  "southward"  is  due  south,  if  there  be 
nothing  else  to  control  it.  But  a  natural  object  was  called  for,  the 
eastern  base  of  a  small  hill  which  rises  not  far  from  the  forks  of  the 
creek  from  the  midst  of  the  surrounding  level  land  of  the  valley.  The 
call  for  a  south  line  and  for  the  eastern  base  of  that  hill  happen  to  be 
precisely  consistent.  Some  of  the  earlier  surveys  made  the  base  of  the 
hill  two  or  two  and  a  half  degrees  east  of  south.  The  last  survey  was 
made  with  great  care  and  skill,  and  by  it  the  base  of  the  hill  was  ascer 
tained  to  be  precisely  south  from  the  forks  of  the  creek.  Then  they 
declared  that  this  south  line,  running  past  the  eastern  base  of  the  hill, 
should  go  straight  to  its  terminus  without  angle,  crook,  or  bend.  It 
remains  that  we  ascertain  what  the  terminus  is.  Before  them,  on  the 
course  of  the  south  line,  lay  the  green  hills  upon  which  their  cattle 
were  feeding  at  that  moment ;  and  in  the  blue  distance  behind  the 
hills  rose  the  great  mountain,  barren,  rugged,  and  bare,  two  thousand 
feet  higher  than  the  hills.  To  say  that  they  did  not  know  the  differ 
ence  between  their  own  pasture-grounds  on  the  hills  and  the  barren 
mountain  beyond  the  hills,  is  wholly  preposterous.  It  is  still  more 
absurd  to  suppose  that  they  would  voluntarily  exclude  their  pasture 
from  the  grants  they  were  asking  for,  and  leave  the  hills  vacant,  so 
that  the  Governor  might  grant  them  the  next  day  to  somebody  else, 
who  would  drive  their  cattle  down  upon  the  dusty  plain,  where  every 
head  and  hoof  of  them  would  starve  in  a  week. 

This  description,  considered  alone,  without  reference  to  the  map, 
makes  the  line  too  clear  for  doubt.  They  did  intend  to  start  at  the 
forks  of  the  creek,  to  run  southward  past  the  eastern  base  of  the 
lomita,  and  onward  by  a  straight  line  over  the  hills  to  the  ijoot  of  the 
main  Sierra. 

But  the  prefect  knew  very  well  that  a  mere  verbal  description, 
which  reaches  the  mind  only  through  the  ear,  is  always  liable  to  per 
version.  He  determined,  therefore,  that  he  would  leave  it  to  no  quib 
bling  argument  upon  the  meaning  of  words ;  he  would  submit  it  to 
the  more  faithful  sense  of  sight ;  it  should  be  an  ocular,  not  merely  a 
logical  demonstration.  He  took  the  map  which  had  been  prepared  by 


FORENSIC.  443 

Berreyesa,  and  on  which,  every  object  referred  to  in  the  description  of 
the  line  was  carefully,  though  rudely,  laid  down  and  marked  in  such 
a  manner  as  to  make  it  certain  what  he  meant  by  it.  There  was  the 
Sierra  Azul,  the  lomas  bajos,  the  lomita,  and  the  water-courses,  with 
the  name  of  each  object  written  under  or  over  it.  The  prefect  took 
this  map  and  drew  across  it  a  dotted  line,  beginning  at  the  forks  of 
the  creek,  and  going  straight  past  the  eastern  base  of  the  lomita,  over 
the  hills  to  the  foot  of  the  mountain.  He  referred  iii  his  report  to 
this  map  of  Berreyesa  with  the  dotted  line  upon  it,  and  made  it  a  part 
of  his  report.  It  is  referred  to  in  both  the  grants  as  showing  where 
the  true  line  is. 

It  is  a  sin  and  a  shame  that  any  denial  of  a  fact  so  plain  as  this 
should  have  been  tolerated  in  a  court  of  justice.  It  is  not  creditable 
to  the  laws  of  this  country,  that  they  are  capable  of  being  so  perverted 
as  to  keep  a  man  in  litigation  on  a  question  so  incontestably  clear.  It 
is  a  foul  scandal  upon  the  administration  of  justice  that  we  are  here 
now  for  the  third  time  trying  to  get  a  right  established  which  depends 
upon  a  fact  so  entirely  free  from  doubt.  Yet  it  is  upon  a  dispute 
about  the  course  and  the  distance  of  that  line  that  all  the  opposition 
ever  made  to  our  claim  has  been  based. 

Upon  what  sort  of  evidence  have  they  undertaken  to  deny  that  it 
is  where  we  allege  it  to  be  ?  The  record  shows  none  whatever.  Not  a 
single  spark,  not  a  scintilla,  of  evidence  has  ever  been  adduced,  upon, 
any  occasion,  in  any  court,  that  was  calculated  to  raise  even  a  doubt 
about  it.  No  surveyor,  public  or  private,  has  ever  gone  upon  the 
ground  and  come  back  with  a  statement  that  it  could  be  run,  consist 
ently  with  the  calls  of  the  grant,  in  any  but  one  way.  No  witness  has 
ever  stated  a  fact  upon  which  an  opposing  theory  could  be  based.  No 
one  has  ever  sworn  even  to  a  contrary  opinion.  No  man  who  has 
sense  enough  to  set  a  Jacob's -staff  in  the  ground,  and  take  sight 
across  a  compass,  can  declare  that  the  line  is  not  run  where  it  ought  to 
be,  and  in  the  only  place  where  it  can  be  run,  without  violating,  what 
all  parties  here  admit  should  not  be  violated,  the  calls  of  the  grant. 

The  first  survey  was  made  by  John  R.  Snyder,  in  the  employment 
of  Grove  Cook,  to  whom  Larios  had  sold  the  land,  in  July,  1845.  The 
survey  was  made  in  1847,  after  Cook  had  heard  of  the  attempt  to  ap 
propriate  his  property  by  certain  persons  who  pretended  to  have  dis 
covered  a  treasure  upon  it.  The  line  then  run  by  Snyder  started  at 
the  forks  of  the  creek,  ran  eastward  of  the  mine,  and  up  to  the  mount 
ain  as  it  runs  now. 

Afterward  Stratton  ran  the  same  line  for  Berreyesa,  who  had  cast 
a  covetous  eye  upon  the  quicksilver  hills  ;  but  Stratton  could  not  per 
vert  the  line,  nor  turn  it  out  of  its  course,  nor  stop  short  of  its  termi 
nus,  and  he  therefore  placed  it  precisely  where  the  Surveyor-General 
put  it  afterward,  and  where  Snyder  had  placed  it  before. 


44:4:  FORENSIC. 

In  1855  Hays  and  La  Croze,  under  instructions  from  the  General 
Land -Office,  made  another  survey.  They  ascertained  the  objects 
which  should  control  the  course  and  termination  of  the  line  together 
and  settled  them  carefully.  That  was  before  any  decree  was  made  ex 
cept  the  decree  of  the  Land  Commission  which  simply  referred  to  the 
grants  and  the  map  as  showing  where  the  line  should  be  located. 

Afterward  again  the  same  line  was  surveyed  twice  by  Mandeville, 
once  for  Berreyesa,  and  once  for  us,  and  again  both  surveys  ran  pre 
cisely  in  the  same  way. 

That  is  not  all.  It  became  necessary  to  ascertain  where  the  eastern 
boundary-line  terminated,  whether  at  the  mountain  or  the  foot  of  the 
low  hills,  before  the  rights  of  the  Gruadalupe  Mining  Company  could 
be  determined.  They  got  a  survey  made  of  the  fourth  of  a  league 
which  had  been  sold  to  them.  By  that  survey,  as  by  the  others,  it  was 
decided  that  the  southern  line  of  the  grant  to  Larios  was  the  foot  of 
the  mountain. 

Every  survey,  therefore,  official  and  unofficial,  public  and  private, 
has  concurred.  All  agree  that  the  line  starts  at  the  spot,  is  on  the 
course,  and  terminates  at  the  place  where  we  say  it  does. 

No  surveyor,  with  the  grants  and  the  disenos  in  his  hand,  could  fail 
to  find  the  place  of  beginning  ;  no  one  could  miss  seeing  the  eastern 
base  of  the  lomita  ;  nor  was  it  possible  for  human  perversity  not  to 
perceive  that  the  terminus  of  the  line  was  at  the  foot  of  the  great 
Sierra.  The  line  was  marked  by  monuments  which  could  not  and 
would  not  be  trifled  with.  The  blue  mountains,  the  green  hills,  and 
the  rolling  streams,  testified  to  it  with  a  voice  which  no  sophistry 
could  obscure  and  no  perjury  could  contradict. 

On  the  other  side  of  the  question,  the  principal  name  that  is  used 
by  our  adversaries  for  the  purpose  of  mystifying  the  subject,  is  that  of 
Mr.  William  -J.  Lewis.  You  can  not  read  the  testimony  of  that  witness 
without  perceiving  that  he  is  a  man  of  very  considerable  ability,  and 
of  much  skill  in  his  profession  as  a  surveyor  and  a  draughtsman.  Nor 
do  I  know  anything  that  would  justify  me  in  making  any  imputation 
upon  his  integrity.  He  was  a  professional  man.  He  was  willing  to 
sell  his  talents  to  anybody  that  would  pay  his  price  for  them.  He 
would  do  any  job  in  his  line  that  was  desired  in  the  way  most  satisfac 
tory  to  his  employers ;  and  after  he  had  done  it,  he  did  not  consider 
himself  at  all  responsible  for  the  use  which  might  be  made  of  the  ma 
terials  which  he  had  furnished.  This  man  was  employed  for  years  (not 
all  the  time,  but  off  and  on)  in  doing  everything  that  a  surveyor  and  a 
draughtsman  could  do  except  going,  like  an  honest  man,  upon  the 
ground,  running  the  line  in  dispute,  and  saying  whether  it  was  at  the 
right  place  or  the  wrong  one.  They  did  not  ask  him  to  do  that, 
which  might  have  been  done  in  a  day,  but  they  kept  him  for  months 
and  years,  running  over  the  hills,  measuring  every  height  and  chaining 


FORENSIC.  445 

eyery  hollow,  and  making  maps  and  diagrams  of  all  the  ranches  for 
fifteen  miles  around.  At  one  time  you  hear  of  him  at  the  top  of 
Mount  Umunhum,  four  thousand  feet  up  toward  the  sky.  The  next 
thing  you  know,  he  is  down  in  some  dark  hollow,  measuring  away  at 
something  else,  but  always  as  far  as  he  can  possibly  get  from  the  line 
in  dispute.  One  day  he  is  off  ten  miles  to  the  east  of  Berreyesa,  and 
then  again  he  is  surveying  a  rancho  somewhere  north  of  the  Pueblo 
Hills,  clean  out  of  sight  of  this  region.  When  asked  on  his  path  why 
he  had  done  certain  things,  he  gave,  as  a  reason,  that  he  was  requested 
to  do  so  by  those  who  had  employed  him. 

Some  things  he  could  do,  and  some  other  things  were  beyond  the 
reach  of  his  skill.  He  could  make  what  he  called  a  survey  of  the 
Larios  rancho,  locating  it  below  the  mining  ridge,  so  as  to  make  it 
appear  that  Larios  was  absurd  enough,  in  1842,  to  take  a  grant  of  that 
naked  plain  and  leave  out  the  hills  upon  which  he  relied  for  a  living. 
How  did  they  get  Lewis  to  do  that  ?  By  withholding  from  him  the 
evidence  which  showed  where  the  true  location  was.  They  gave  him, 
not  the  grant  to  Berreyesa  and  Larios,  but  only  the  diseno  of  Larios, 
on  which  the  low  hills  did  not  happen  to  be  laid  down.  By  closing 
his  eyes  upon  the  evidence,  and  getting  him  to  assume  that  Sierra 
del  Encino  meant  not  the  mountain,  but  the  low  hills,  it  was  not  a 
difficult  thing  for  him  to  suppose,  or  to  say,  that  the  southern  bound 
ary  of  the  Larios  tract  was  the  foot  of  the  Lomas  Bajos.  He  made  this 
assumption  contrary  to  the  truth,  as  proved  by  clouds  of  witnesses, 
that  Sierra  del  Encino  meant  the  great  mountain,  so  called  because 
of  the  remarkable  oak-tree  which  grew  upon  its  side — contrary  to  all 
the  evidence  which  declared  that  the  Lomas  Bajos  were  never  known 
nor  called  by  any  such  name.  But  though  he  did  it  contrary  to  the 
evidence,  it  was  probably  not  his  fault,  for  the  evidence  was  carefully 
excluded  from  his  sight  by  those  who  employed  him.  He  had  not 
seen  the  map  of  Berreyesa,  upon  which  the  common  line  of  Berreyesa 
and  Larios  both  was  laid  down. 

When  asked  on  his  cross-examination  whether  he  could  have  made 
such  a  survey  with  the  Berreyesa  map  before  him,  he  admitted  that 
that  would  have  been  another  thing.  So  this  attempt  to  get  the  au 
thority  of  a  surveyor,  on  the  opposite  side  of  the  scale  against  all  the 
other  surveys  was  a  failure,  and  it  was  abandoned  of  course. 

Some  other  things  Mr.  Lewis  could  do  for  his  employers.  He 
could  make  maps,  and  all  those  maps,  or  most  of  them,  with  which 
your  tables  are  covered,  came  from  that  mint.  The  object  being 
not  to  exhibit  the  truth,  but  to  pervert  it,  they  are  as  far  as  possible 
from  being  a  simple  exhibition  of  the  lines  which  bound  these  two 
grants,  or  either  of  them.  They  purport  to  be  topographical  maps  of 
a  large  region  of  country,  and  are  laid  down  in  such  a  manner  as  to 
exhibit  the  survey  in  a  most  unnatural  position.  The  red  lines,  which 


446  FORENSIC. 

you  see  running  from  one  point  to  another,  were  none  of  them  placed 
there  to  show  what  the  lines  of  the  survey  are,  but  were  made  as  the 
foundation  of  some  theory  upon  which  the  survey  could  be  contradict 
ed  and  impugned.  It  will  be  observed,  also,  that  these  maps  represent 
the  land  near  the  forks  of  the  creek  as  being  a  perfectly  level  plain  ; 
looking  at  it  casually,  you  would  suppose  it  to  be  a  rich  alluvial  bot 
tom  as  even  as  the  surface  of  a  lake.  It  is  not  so.  It  slopes  from 
the  southeast  to  the  northwest,  and  the  surface  is,  like  that  of  other 
semi-mountainous  formations,  unequal.  But  he  takes  care  to  make 
this  appearance  of  valley  terminate  just  where  his  employers  wanted 
to  say  that  the  mountain  began.  "When  he  gets  to  the  upper  part  of 
the  valley  he  magnifies  every  little  inequality  so  as  to  make  it  look 
just  like  the  mountain.  He  marks  the  various  elevations  upon  the 
mountain  and  the  hills.  Here  it  is  fourteen  hundred  feet ;  here 
twelve  hundred  ;  here  eleven  hundred  ;  but  down  in  the  valley  behind 
the  hills,  where  the  land  is  depressed  seven  hundred  feet,  he  does  not 
mark  the  heights  of  those  places,  but  shades  it  all  in  the  same  way  as 
he  does  the  mountain  heights.  It  would  never  strike  you,  looking  on 
this  map  of  his,  that  the  land  here  is  seven  hundred  feet  lower  than  the 
low  hills  on  one  side,  and  twenty-seven  hundred  feet  lower  than  the 
mountain  on  the  other  side.  This  thread  of  water  looks  as  if  it  were 
running  along  on  the  brow  of  the  mountain,  and  you  wonder  why 
such  a  stream  should  not  rush  down  the  mountain-side  in  a  succes 
sion  of  cascades  ;  but  the  reason  why  you  wonder  is,  because  you  do 
not  know  that  between  your  point  of  view  and  that  water  there  is  a 
range  of  hills  seven  hundred  feet  higher  than  the  bed  of  the  creek. 
Such  maps  as  these,  well  marked  as  they  are  with  red  lines,  would 
furnish  the  material  for  many  a  long  speech,  and  many  a  one  has 
been  made  upon  them,  in  court  and  out  of  court,  that  has  "  split  the 
ears  of  the  groundlings  "  sundry  times. 

But  all  the  time  these  things  were  in  the  course  of  manufacture, 
Mr.  Lewis  knew,  and  his  employers  knew,  that  the  true  line  which  it 
was  their  object  to  pervert  and  falsify  was  just  where  the  Surveyor- 
General  said  it  was.  He  had  not  been  measuring  that  country  all  over, 
and  making  diagrams  of  every  spot  of  ground  in  a  circumference  of 
fifty  miles,  without  knowing  what  he  was  doing  it  for,  or  without 
knowing  where  the  true  line  was.  I  say  he  knew  it,  and  if  he  had 
told  at  first  what  he  did  know,  the  question  would  have  been  settled 
long  before  it  was.  But  he  did  settle  it  at  last.  When  he  was  sworn, 
he  was  made  to  talk  plain  English,  and  tell  the  plain  truth.  On 
pages  355  and  356  of  this  record,  you  find  him  speaking  to  the  very 
point.  He  was  told,  "  Take  your  map  and  show  us  whereabouts  on 
that  map  lies  the  line  that  the  Surveyor-General  has  made  "  ;  and  like 
a  man  who  understood  the  obligations  of  his  oath,  he  did  what  he  was 
bidden  to  do.  He  marked  the  Surveyor-General's  line  with  red  ink 


FORENSIC. 

and  said,  "It  lies  here  from  0  to  R."  Remember,  if  your  honors 
please,  that  is  the  line  by  which  we  claim.  Several  other  questions 
were  then  put  to  him,  and  finally  it  was  demanded  of  him  to  say  where 
is  the  line  that  Fernandez  marked  upon  the  map  of  Berreyesa.  Now 
we  shall  see  whether  Mr.  Lewis  will  contradict  all  the  other  surveyors 
or  not.  I  pray  you  mark  his  answer  well  on  page  356.  He  says  that 
the  dotted  line  upon  Berreyesa's  map  runs  from  0  to  ft  as  nearly  as  it 
can  be  determined,  that  is  to  say,  it  runs  precisely  where  the  Surveyor- 
General  has  put  it.  He  attempts  some  qualification  of  this  answer, 
and  by  that  means  clinches  the  nail  which  previously  he  had  driven  to 
the  head.  He  says  that  there  is  room  for  a  difference  of  opinion  ; 
this  is  a  long  line  made  by  the  production  of  a  shorter  one,  and  a 
slight  difference  at  the  point  of  beginning  might  make  a  considerable 
difference  at  the  other  end.  Then  he  was  asked  this  question  in  sub 
stance  :  Making  allowance  for  every  possible  difference  of  opinion 
about  the  point  of  beginning,  what  difference  would  that  make  at  the 
southern  end  of  the  line  ?  and  he  answers,  "  At  the  utmost  not  more 
than  fourteen  chains. " 

Thus  the  only  witness  upon  whom  our  adversaries  could  rely  to 
contradict  our  survey  deserts  them  at  the  last  moment.  With  one 
breath  he  sweeps  away  all  the  rubbish  that  he  and  his  employers  had 
been  gathering  about  it  for  years — sweeps  it  away  as  the  wind  sweeps 
the  chaff  from  the  summer  threshing-floor.  "  Roll  up  the  map  of 
Europe,"  said  William  Pitt,  when  he  heard  of  the  battle  of  Austerlitz 
— "  roll  up  the  map  ;  it  will  not  be  wanted  for  twenty  years  to  come." 
Well  might  Castillero  and  Barron  have  said,  "  Roll  up  these  maps  and 
carry  them  away  ;  they  are  of  no  use  now,  and  never  will  be  until  this 
evidence  is  forgotten."  Yet  this  cast-off  trash  of  the  New  Almaden 
Company,  treated  with  contempt  by  the  court  below,  abandoned  by 
its  authors  because  they  were  ashamed  of  its  hollow  falsehood,  is 
brought  here,  vamped  over  again,  rehashed,  reproduced,  and  paraded 
for  the  delectation  of  this  court  by  the  counsel  of  the  United  States. 
But  he  takes  precious  good  care  not  to  call  your  attention  to  the 
plain,  direct,  clear  truth,  stated  by  Lewis  himself.  Why  ?  Because 
he  knew  very  well  that  the  simple  fact  thus  proved  would  go  through 
and  through  his  flimsy  sophistry,  as  a  battering-ram  would  go  through 
a  wall  of  pasteboard.  He  must  make  a  speech,  forsooth,  and  if  he 
would  acknowledge  the  fact  that  Lewis  proves,  his  speech  would 
come  to  a  sudden  and  a  violent  end  ;  if  he  but  looked  it  in  the  face 
for  one  instant  it  would  strike  him  dumb  upon  his  feet. 

We  have  no  right  to  complain  of  the  courts,  or  of  their  dealing 
with  this  testimony.  The  long  delay  which  the  claimant  has  endured 
is  not  the  fault  of  any  court  that  I  know  of ;  for  the  decisions  have 
been  uniform,  constant,  without  variation,  in  favor  of  that  line,  down 
until  the  last  decision  of  Judge  Hoffman.  When  the  case  went  be- 


448  FORENSIC. 

fore  the  Land  Commission,  that  board  concurred  with  all  the  surveys 
that  had  been  made  before.  They  understood  the  responsibility  that 
was  upon  them,  for  they  knew  that  the  line  run,  as  they  described  it, 
according  to  the  calls  of  the  grant  and  referring  to  the  Berreyesa  map, 
would  include  the  mine.  When  the  case  was  taken  to  the  District 
Court,  a  very  elaborate  investigation  of  everything  connected  with  all 
the  lines  was  made.  After  years  of  controversy  there,  and  the  produc 
tion  of  a  large  amount  of  evidence  on  both  sides,  the  court  deter 
mined  according  to  all  the  evidence — for  on  one  side  there  was  really 
no  evidence  at  all — that  the  eastern  line  began  at  the  forks  of  the 
creek  and  ran  to  the  mountain,  and  that  the  mountain  was  our  south 
ern  boundary.  They  gave  us,  however,  more  land  than  we  were  en 
titled  to,  by  the  error  which  they  committed  in  relation  to  the  north 
ern  line.  That  decree  was  brought  into  this  court  by  appeal,  and  it 
was  here  decided  that  there  was  no  ambiguity  about  the  grant,  that 
the  three  lines  of  the  land  granted  to  Larios,  on  the  east,  south,  and 
west,  were  well  defined  by  natural  objects  on  the  ground,  and  the 
fourth  line  should  be  so  run  as  to  include,  between  itself  and  the  other 
three  lines,  exactly  one  league  of  land.  That  league  was  confirmed  to 
us,  and  declared  to  be  our  property.  When  the  case  went  back  to  the 
District  Court,  that  court,  notwithstanding  the  protest  of  the  claim 
ant,  opened  everything  for  reinvestigation  :  a  new  contest  took  place 
again  about  the  eastern  line  and  the  southern  line  ;  the  whole  ground 
was  gone  over  again,  and  another  year  of  litigation  followed.  But  it 
ended  in  a  decree  declaring  that  we  were  entitled  to  the  land  within 
the  boundaries  of  the  survey  as  now  claimed. 

In  the  mean  time  the  very  same  questions  arose  incidentally  in 
two  other  cases.  Berreyesa's  claim  went  before  the  Land  Commission. 
His  western  line  was  our  eastern  line,  and  the  decree  there  was  the 
same  as  in  our  case.  The  District  Court  and  the  Supreme  Court 
both  affirmed  the  decision.  The  Guadalupe  Mining  Company  was  the 
owner  of  one  quarter  of  the  Larios  grant  upon  the  western  side,  and 
prosecuted  the  claim  for  it  separately.  It  was  necessary,  there  also, 
to  determine  whether  the  Larios  grant  ran  to  the  mountain,  and  it 
was  decided  by  the  Land  Commission  and  the  District  Court  that  it 
did.  Nine  decrees  under  the  act  of  1851  were  successively  pronounced 
upon  that  same  subject-matter,  and  every  one  of  them  affirmed 
our  right  to  the  mountain  as  the  southern  boundary  of  the  lands 
granted  to  Justo  Larios.  With  these  adjudications  establishing  our 
right,  all  standing  unreversed  upon  the  record,  who  could  interpose 
to  prevent  us  from  getting  a  patent  ?  The  United  States  could  legally 
and  justly  make  no  further  objection.  But  other  parties  procured 
the  passage  of  the  Survey  Law  of  1860,  which  was  a  grievous  and  in 
expressible  hardship  upon  the  claimants  under  Larios.  It  did  not 
promise  to  the  parties  in  opposition  the  remotest  chance  of  defeating 


FORENSIC.  449 

our  right ;  but  it  put  into  their  hands  the  means  of  delaying  and 
baffling  what  all  knew  to  be  the  claim  of  the  true  owner.  The  pro 
visions  of  the  Survey  Law  have  been  used  for  that  purpose.  Castil- 
lero,  Barren,  Parrot,  and  others,  with  Foster  for  a  make-weight, 
brought  the  survey  into  court. 

The  survey  as  made  by  the  proper  officer  of  the  United  States,  the 
Surveyor-General — the  survey  which  is  the  subject  of  revision  now 
and  here — was  made  in  precise  accordance  with  the  decree  of  the  Dis 
trict  Court  under  the  law  of  1851.  No  one  ever  denied  that ;  on  the 
contrary,  its  validity  is  actually  attacked  in  this  court  on  the  very 
ground  that  it  does  follow  the  decree  precisely. 

Here  I  must  pause  to  answer  the  assertion  of  the  Attorney-Gen 
eral's  assistant,  that  our  survey  is  void,  because  it  is  in  exact  conform 
ity  with  the  decree  which  authorized  it.  According  to  his  notion 
the  Surveyor-General,  when  he  comes  to  locate  a  tract  of  land  which 
has  been  confirmed  under  a  Mexican  title,  may  go  vagabondizing  all 
over  tne  country,  and  survey  to  the  claimant  any  land  he  pleases,  so 
that  he  does  not  survey  the  same  land  that  was  confirmed.  If  a 
claimant  asserts  his  right  in  the  Land  Commission  and  the  District 
Court  to  a  certain  league  of  land,  and  the  United  States  opposes  the 
claim,  upon  the  ground  that  his  title  applies  not  to  that  league,  but 
to  some  other  league,  and  the  decision  of  the  court  having  jurisdiction 
of  the  subject  is  that  he  owns  the  league  he  claims,  the  Surveyor- 
General  may,  notwithstanding  the  decree,  survey  to  him  the  other 
league,  which  the  court  has  pronounced  to  be  public  land,  or  the  pri 
vate  property  of  some  other  citizen.  That  was  precisely  the  case  here. 
The  alienees  of  Justo  Larios  asserted  their  right  to  a  league  of  land 
bounded  by  the  mountain  on  the  south.  The  United  States  averred 
that  his  title  was  for  a  different  league,  of  much  less  value,  bounded 
by  the  Pueblo  Hills.  The  court  confirmed  and  established  his  right 
to  the  league  at  the  mountain,  and  the  assistant  of  the  Attorney- 
General  now  argues  that  the  survey  is  void,  because  the  Surveyor- 
General  measured  and  marked  upon  the  ground  the  land  that  was 
confirmed  by  the  court,  and  not  other  land  which  the  court  decided 
to  be  public  property.  That  such  a  proposition  should  be  made 
by  any  lawyer,  in  any  court,  would  be  strange  enough ;  but  that 
it  should  have  been  made  by  a  gentleman  in  the  service  of  the 
United  States,  and  in  the  Supreme  Court,  is  a  fact  which  I  would 
not  believe  without  the  sensible  and  true  avouch  of  mine  own  eyes 
and  ears. 

But  this  is  a  point  upon  which  the  Attorney-General  and  his  as 
sistant  are  again  in  conflict.  The  chief  law  officer  of  the  Govern 
ment,  with  a  candor  and  a  fairness  which  does  him  honor,  utterly  re 
pudiates  the  doctrine  of  his  assistant.  He  says  that  the  survey  must 
be  made  of  the  same  land  which  has  been  confirmed,  and  admits  that 

29 


450  FORENSIC. 

tfte  Surveyor-General  has  no  right  to  survey  and  return  for  patenting 
other  land,  which  belongs  to  other  parties  or  to  the  public. 

The  act  of  Congress  denning  the  duties  of  the  Surveyor- General 
expressly  and  in  plain  terms  declares  that,  when  a  confirmation  is 
made  under  the  act  of  1851,  he  shall  survey  the  same  land  that  is 
confirmed,  and  this  is  repeated  more  than  once. 

If  you  will  look  at  page  405  of  this  record,  you  will  find  the  in 
structions  given  to  the  Surveyor-General  of  California  by  the  Land- 
Office.  Foremost,  principally,  and  first  of  all,  is  the  great  funda 
mental  rule  that  he  must  take  care,  when  surveying  confirmed  lands, 
always  to  follow  the  decree,  and  never,  in  any  case,  presume  to  depart 
from  the  lines  there  described.  The  Surveyor-General  has  never,  in 
any  case,  violated  these  instructions,  or  presumed  to  entertain  an  ap 
peal  from  the  decision  of  the  Land  Commission,  the  District  Court, 
or  the  Supreme  Court. 

If  this  survey  is  void  because  it  follows  the  decree,  then  all  the 
surveys  in  California  are  void  for  the  same  reason.  If  the  surveys  are 
void,  so  are  the  patents,  and  there  is  not  a  single  title  established  in 
all  California. 

I  admit  that  there  may  be  cases  in  which  the  decrees  themselves  do 
give  to  the  Survey  or- General  a  certain  amount  of  discretion,  which  he 
is  to  exercise  according  to  his  best  judgment.  For  instance,  a  claim 
ant  has  confirmed  to  him  one  league  of  land,  lying  within  limits  that 
contain  eight,  ten,  or  twenty  leagues.  There  he  may  prima  facie  take 
his  league  of  land  anywhere  that  he  chooses  to  have  it  within  those 
boundaries,  and  he  must  signify  his  election  to  the  Surveyor-General. 
It  is  the  Surveyor-General's  duty  to  see  that  the  location  shall  be 
made  in  such  a  manner  as  to  do  no  injustice,  either  to  the  public  or  to 
any  private  party  who  may  have  rights  to  land  in  the  same  locality. 

Where  the  grant  is  for  a  certain  quantity  of  land  within  limits 
containing  a  larger  quantity,  the  decree  of  the  court  must  necessarily 
follow  the  grant,  and  confirm  to  the  party  such  title  as  he  has.  If  it 
be  a  floating  grant,  the  court  confirms  it  as  a  floating  title,  and  leaves 
to  the  Surveyor-General  the  duty  of  anchoring  it  by  a  survey  ;  but  if 
the  grant  be  for  a  certain  specific  piece  of  land,  with  certain  boundaries 
expressly  described  as  the  boundaries  of  the  land  granted,  there  the 
decree  is  false,  unless  it  confirms  the  title  of  the  claimant  to  the  very 
land  which  his  grant  describes.  For  instance,  suppose  the  grant  to 
be  for  a  town  lot,  fifty  varas  fronting  upon  a  certain  street  and  extend 
ing  fifty  varas  back  to  another  street,  is  the  court  not  bound  to  decree 
that  he  is  the  owner  of  that  same  lot  ?  Or,  suppose  the  claim  to  be 
for  an  island,  must  not  the  court  pronounce  what  island  is  the  subject- 
matter  of  the  grant  ? 

Whether  a  grant  is  a  floating  grant  or  a  fixed  one  ;  whether  it  ap 
plies  to  a  certain  definite  portion  of  the  earth's  surface,  or  applies 


FORENSIC.  451 

equally  well  to  more  than  one  spot,  is  a  question  of  construction.  It 
is  the  business  of  the  court,  under  the  act  of  1851,  to  interpret  the 
words  of  the  grant,  and  determine  whether  it  is  fixed  or  floating.  In 
this  case  the  grant  has  been  construed.  It  received  its  just  and  true 
interpretation  in  this  court  and  in  the  District  Court.  It  is  decided 
to  be  a  specific  grant  of  a  certain  well-defined  league  of  land,  lying 
next  to  the  mountain  on  its  southern  side,  reaching  to  Berreyesa's 
line  on  the  east,  to  the  Capitancillos  Creek  on  the  west,  and  extending 
northward  as  far  as  may  be  necessary  to  take  in  one  league  of  land. 
Yet  the  survey  is  here  alleged  to  be  void,  because  it  took  in  this  league 
of  land,  so  confirmed  to  the  claimant,  and  did  not  include  what  was 
pronounced  by  the  same  decree  to  be  the  public  property  of  the  United 
States. 

The  survey  was  brought  into  court  under  the  act  of  1860.  A 
monition  was  issued,  calling  upon  all  parties  who  were  interested  in  it 
to  appear  and  make  objections,  if  any  objections  they  had.  No  one 
then  thought  of  objecting  to  it  on  the  ground  that  it  was  a  survey  of 
the  same  land  which  had  been  confirmed  by  the  previous  decree  of  the 
court.  The  claimant  was  bound  by  the  decree,  and  therefore  bound 
to  accept  the  survey  in  accordance  with  it,  for  that  was  the  only  sur 
vey  he  could  have.  The  United  States,  being  parties  to  the  same 
decree,  were  also  bound  by  it.  They  could  start  no  objection 
which  would  not  open  a  question  which  had  already  been  decided 
by  the  proper  court  under  the  act  of  1851,  upon  a  full  and  fair  hear 
ing. 

The  United  States  made  no  objections  at  all.  That  being  the  case, 
can  they  make  any  objections  in  this  court  ?  It  is  not  possible  that 
such  a  perversion  of  justice  can  be  tolerated  here.  If  the  Govern 
ment  had  any  objections  to  the  survey,  we  had  a  right  to  know  them 
then  and  there,  so  that  if  they  were  true  we  could  obviate  them  by 
such  a  modification  of  the  survey  as  might  seem  to  be  necessary  ;  so 
that  if  they  were  false  and  unfounded  we  might  produce  the  evidence 
to  show  it ;  and  so  that  if  the  case  should  ever  come  into  the  appel 
late  court  we  might  have  the  evidence  on  record  which  would  prove 
the  truth.  To  change  the  survey  here,  upon  grounds  that  were  con 
cealed  from  us  in  the  court  below,  is  to  condemn  the  party  without  a 
hearing.  To  hear  us  in  this  court  upon  a  record  which  does  not  con 
tain  the  evidence  which  might  have  been  given  in  the  court  below  is 
no  hearing  at  all.  The  Attorney-General  lay  low  in  the  District 
Court,  denied  that  he  had  any  objections  to  offer,  studiously  concealed 
from  us  the  intention  to  make  opposition,  there  or  here,  down  to  the 
moment  when  the  argument  in  this  court  was  about  to  commence, 
and  then  suddenly  sprung  upon  us,  from  his  pocket,  a  set  of  objec 
tions  never  heard  or  thought  of  before.  Can  he  do  this  thing  ?  I 
answer,  No ;  no  more  than  he  can  set  a  man -trap  in  the  middle  of 


452  FORENSIC. 

Pennsylvania  Avenue,  and  cover  it  up  so  as  to  catch,  the  first  unwary 
passenger  that  conies  along. 

But  the  Attorney-General,  at  the  time  when  he  decided  that  no 
objections  to  this  survey  should  be  made  in  the  District  Court,  was 
not  actuated  by  any  evil  motives,  or  any  unjust  designs  upon  the 
claimant.  He  knew  then  what  he  was  doing  perfectly  well.  He  un 
derstood  the  rights  of  the  claimants,  and  the  rights  of  the  United 
States.  He  decided  justly,  and  well,  between  them.  He  made  no 
objections  to  the  survey,  because  he  knew  that  the  United  States  were 
estopped  by  the  previous  decree.  I  need  not  elaborate  that  point,  for 
the  Attorney-General  understands  it  now  as  well  as  he  understood  it 
then,  and  he  has  not  ventured  to  assert  that  he  can  get  behind  the 
decree.  On  the  contrary,  he  has  expressly  admitted  that  he  can  not. 

But  there  were  other  reasons.  When  the  case  was  here  first,  this 
court  said  that  the  United  States  should  not  act  as  a  contentious  liti 
gant,  but  as  a  great  nation  seeking  to  administer  justice  among  her 
people.  After  nine  judicial  decrees  had  been  made,  upon  the  very 
same  question  of  fact  and  law,  this  Government  would  have  been  a 
very  contentious  litigant  indeed  if  it  had  tried  to  raise  the  same  ques 
tion  a  tenth  time.  An  individual  who  would  act  in  that  manner 
would  find  no  favor  in  the  eyes  of  any  court,  but  would  be  treated 
with  all  the  marks  of  dislike  which  could  be  shown  to  a  stubborn  and 
unreasonable  suitor. 

That  was  not  all.  Every  officer  of  the  United  States  knew  that 
the  survey  was  precisely  right,  and  that  the  decree  under  which  it  was 
made  stood  firm  upon  the  truth  and  justice  of  the  case.  The  local 
officers  of  the  Government  in  California  had  watched  the  current  of 
this  heady  fight  for  seven  years,  and  not  one  of  them  had  a  doubt 
about  the  justice  of  the  claim.  The  Attorney-General's  office  was 
filled  with  reports  upon  it,  which  came  by  every  steamer.  No  man  in 
that  department  was  perverse  enough  to  misunderstand  its  merits. 
How  could  any  officer  object  to  this  survey  ?  What  could  he  say 
against  it  ?  If  he  desired  to  change  it,  he  must  take  some  objection 
either  to  the  course  or  the  distance  of  the  eastern  line;  and  what 
would  he  say  about  that  ?  If  he  would  assert  that  it  did  not  begin  at 
the  forks  of  the  creek,  the  hot  blood  of  shame  would  suffuse  his 
cheek ;  his  face  would  grow  redder  and  hotter,  if  he  should  undertake 
to  declare  that  it  did  not  run  straight  past  the  eastern  base  of  the 
little  hill,  toward  the  mountain.  And  if  there  was  one  spot  upon  his 
visage  where  a  blush  might  speak,  it  would  be  crimson  when  he  would 
undertake  to  place  upon  record  the  averment  that  it  did  not  go  all  the 
way  to  the  mountain.  Nay,  it  was  not  merely  a  legal  estoppel  which 
forbade  the  filing  of  exceptions ;  honor,  conscience,  and  decency  de 
manded  the  unequivocal  admission  that  this  survey  was  right.  And 
fhat  admission  was  made. 


FORENSIC.  453 

If  this  posture  of  affairs  between  the  United  States  and  the  claim 
ant  is  the  result  of  any  trick,  scheme,  or  evasion  of  the  law,  the 
offense  against  justice  was  committed  when  the  Attorney-General  de 
cided  that  no  objections  should  be  made  to  the  survey.  Then  was  the 
time  the  scheme  was  concocted  ;  then  the  trick  was  played  ;  then  the 
law  was  evaded ;  and  the  Attorney-General's  office  was  a  party  to  it. 
Upon  whom  does  this  calumnious  accusation  fall  ? 

The  survey  was  brought  into  court  on  the  19th  of  December,  1860. 
It  happens,  by  a  singular  coincidence,  that  on  that  very  day  Mr.  Stan- 
ton  took  charge  of  the  Law  Department.  He  knew  every  point  of 
this  case  as  I  know  the  fingers  upon  that  hand.  If  he  abandoned  the 
rights  of  the  United  States,  he  did  it  with  his  eyes  wide  open  to  the 
truth.  I  happen  to  know  that  gentleman  as  a  lawyer  very  well.  In 
some  other  respects,  it  is  possible  he  may  be  beyond  my  depth ; 
but,  in  his  professional  character,  I  know  him  as  well  as  one  man  can 
be  known  to  another.  I  aver  that  no  lawyer  in  this  nation  or  else 
where  understands  the  ethics  of  his  profession  better,  or  lives  up  to 
the  rule  of  its  morality  with  a  truer  spirit.  He  was  then  in  a  purely 
professional  office,  and  he  guarded  the  rights  of  the  public,  as  he 
would  have  guarded  those  of  any  other  client,  to  the  full  extent  that 
his  sense  of  justice  permitted  him  to  go.  Why  did  he  order  that  no 
objections  to  this  survey  should  be  made  ?  I  will  tell  you.  It  was 
because  he  was  incapable  of  descending  to  the  baseness  of  objecting  to 
a  claim  that,  in  his  heart,  he  knew  to  be  just  and  right.  If  there  had 
been  a  question  between  doing  that  and  resigning  his  office,  he  would 
have  thrown  back  his  commission  with  a  manly  scorn. 

Mr.  Bates  succeeded  him  on  the  4th  of  March,  1861.  Surely  no 
one  who  knows  him  will  say  that  he  failed,  either  ignorantly  or  will 
fully,  to  place  the  rights  of  the  United  States  in  a  defensible  position. 
It  was  equally  impossible  that  he  could  participate  in  a  trick  to  de 
fraud  the  public.  On  his  brow  such  a  shame  as  that  would  be  ashamed 
to  sit.  I  know  that  he  had  not  all  the  opportunities  which  Mr.  Stan- 
ton  had  of  understanding  the  details  of  the  case ;  but  it  required  no 
great  investigation.  A  glance  at  the  record  would  tell  him  that  all 
questions  between  the  Government  and  the  claimant  had  been  already 
settled.  The  simplest  brief  upon  the  evidence  would  show  him  that 
no  man,  without  shameless  falsehood,  could  say  anything  whatever 
against  the  correctness  of  the  survey.  These  are  views  which  his 
whole  argument  here  shows  that  he  entertains  at  the  present  moment, 
and  he  caught  them  then  rapidly  and  readily.  Spanish  titles  were  no 
novelty  to  him  ;  he  had  lived  and  practiced  among  them  all  his  life 
time.  He  had  been  the  judge  of  a  land  court.  His  mind  followed  a 
line  as  an  old  Indian  would  follow  a  trail  through  the  wilderness. 
Besides,  he  had  an  abundant  corps  of  assistants.  The  next  man  below 
him  was  Mr.  Coffey,  of  whom  I  can  say  with  safety  that  he  stands 


454:  FORENSIC. 

among  the  foremost  men  in  the  country  of  his  age.  His  immediate 
predecessor,  too,  was  at  that  time  his  habitual  adviser  upon  all  these 
subjects.  Mr.  Bates  understood  what  he  was  doing.  He  knew  what 
the  evidence  was  at  the  time  very  well.  Perhaps  he  has  forgotten  it 
since.  His  speech  is  silent  upon  the  facts ;  therefore  I  can  not  tell 
what  the  state  of  his  memory  may  he.  Perhaps  somebody  else  has 
given  him  another  version  of  it  since,  and  so  misled  him. 

When  Mr.  Stanton  and  Mr.  Bates  decided  that  no  objection  should 
be  made  to  the  survey,  and  no  appeal  should  be  taken  from  the  decree 
of  the  court  below,  they  settled  this  case  so  far  as  concerned  the  rights 
of  the  United  States.  They  had  the  power  to  settle  it ;  it  was  their 
duty ;  it  was  the  legal  function  of  their  office  to  determine  whether 
the  United  States  had  any  interest  in  this  question,  or  any  land  in 
that  place.  When  they  made  their  decision,  they  took  away  from  this 
court,  and  from  all  courts,  the  authority  and  jurisdiction  to  decide 
either  way  upon  the  same  subject.  It  is  unfair  for  the  Attorney- 
General  to  come  here  now  and  attempt  to  divide  with  this  court  the 
responsibility  which  he  then  took  upon  his  own  shoulders. 

Other  parties,  who  were  not  bound  by  the  decree  of  1858,.  came 
into  court  upon  the  monition,  and  did  make  exceptions.  Those  of 
Castillero  and  his  party,  as  well  as  those  of  Foster,  were  overruled,  and 
they  took  appeals,  which  appeals  they  have  asked  leave  to  withdraw. 
The  Attorney- General  concedes  that  right  to  them,  and  they  are  with 
drawn,  of  course.  With  these  exceptions,  therefore,  we  have  nothing 
to  do  ;  they  are  out  of  the  case. 

That  brings  me  to  the  only  exception  left  standing — that  of  the 
Berreyesa  party,  defended  here  by  Mr.  Carlisle  and  Mr.  Williams. 
That  exception  is  curious  enough  to  be  a  remarkable  feature,  even  in 
this  most  extraordinary  case.  I  need  not  say  to  any  member  of  this 
court  that  the  office  of  an  exception  is  to  point  out  the  distinct  error 
of  the  thing  excepted  to,  so  that  the  other  party  may  be  able  to  meet 
it  with  the  necessary  proof,  or,  if  it  be  true,  to  admit  it.  In  a  court 
of  chancery,  or  a  court  of  admiralty,  when  a  master's  report  is  brought 
in,  and  excepted  to  in  general  terms,  because  it  gives  too  much  to  one 
party,  or  too  little  to  another,  such  an  exception  is  regarded  as  frivo 
lous,  and  unworthy  the  attention  of  any  court.  In  this  case  the  coun 
sel  of  the  Berreyesas  say,  in  their  exception,  that  the  survey  includes 
land  within  our  lines  which  they  ought  to  have  ;  but  they  do  not  say 
how  much  land,  or  whereabouts  it  is,  nor  tell  us  how  the  line  could 
be  run,  consistently  with  the  calls,  so  as  to  give  them  more,  or  us  less. 
From  such  sublime  generalities  it  is  impossible  to  learn  what  they 
would  be  at.  The  gentlemen  who  drew  this  exception,  Mr.  Williams 
and  Mr.  Sloan,  seem  to  have  been  conscious  that  something  more 
specific  than  this  was  needed,  and  therefore  they  undertook  to  point 
out  where  the  line  ought  to  be  run ;  they  attempted  to  describe  the 


FORENSIC.  455 

true  line.  That  description,  so  made  by  the  counsel  of  the  Berreyesas, 
is  a  most  singular  proof  that  "truth  is  mighty,  and  will  prevail." 
They  say,  as  we  say,  that  it  begins  at  the  forks  of  the  creek,  and  runs 
southward  across  the  low  hills  to  the  mountain,  in  all  of  which  we 
most  potently  believe,  and  most  cordially  concur.  Their,  averment 
concerning  the  line — its  beginning,  middle,  and  end — is  precisely 
ours.  They  declare  in  their  exception  that  it  runs  exactly  where  the 
Surveyor-General  has  put  it. 

Your  honors  remember  that,  when  the  king  of  the  Moabites 
heard  that  his  country  was  invaded  by  the  wandering  army  that  came 
up  from  Egypt  through  the  wilderness,  under  Joshua,  he  sent  for 
Balaam  the  prophet  to  come  and  wither  his  enemies  with  a  curse. 
"For  well  I  wot,"  said  he,  " that  whom  thou  cursest  God  will  curse." 
He  took  him  up  to  the  top  of  a  mountain  and  promised  that,  if  he 
did  what  was  desired,  he  would  give  him  a  great  reward  and  high 
promotion.  He  showed  him  the  hosts  of  his  foes  encamped  upon  the 
plain,  and  he  said  :  "  Come,  curse  me  Jacob,  and  come,  defy  me 
Israel."  The  prophet  opened  his  mouth  and  spake ;  but,  instead  of 
cursing  Jacob  and  defying  Israel,  he  altogether  blessed  them.  When 
the  king  complained  that  this  was  not  exactly  what  he  had  bargained 
for,  the  prophet  replied  that  if  he  would  give  him  his  house  full  of 
gold  and  silver  he  could  speak  neither  more  nor  less  than  the  truth. 
Those  gentlemen  were  like  the  prophet ;  if  Berreyesa  had  given  them 
his  house  full  of  gold  they  were  too  honest  to  say  anything  except 
what  they  were  constrained  to  say  by  the  spirit  of  the  truth. 

Take  a  retrospect  now.  Let  us  look  at  the  log-book  and  bring  up 
our  reckoning.  Our  grant  was  admitted  to  be  an  honest  one  from  the 
beginning.  Nothing  but  its  boundaries  were  ever  disputed.  Six  sev 
eral  surveys  were  made  to  ascertain  them,  and  every  one  determines 
that  the  lines  we  claim  by  are  the  true  lines.  We  prove  these  surveys 
to  be  correct  by  many  witnesses,  and  those  who  are  called  against  us 
testify  in  the  same  way.  Decree  after  decree,  to  the  number  of  nine, 
gives  us  the  land  that  we  claim.  The  United  States,  by  the  act  o.f 
their  Attorney-General,  admit  the  justice  and  truth  of  all  we  ask. 
Still,  private  parties,  to  baffle  and  delay  us,  put  in  their  exceptions. 
Two  of  those  parties  retire  from  the  contest,  and  that  leaves  us  with 
one  solitary  foe  to  contend  against.  Berreyesa  still  utters  an  indefi 
nite  grumble,  which  shows  that  he  desires  to  have  our  property,  but 
does  not  know  upon  what  ground  he  can  demand  it.  We  turn  to 
him  and  say,  "  If  you  disbelieve  in  all  these  surveys,  those  made  by 
yourself  as  well  as  by  us,  and  all  those  decrees  to  which  you  as  well 
as  we  were  a  party,  come  now,  tell  us  where  you  think  the  true  divis 
ion-line  between  us  is  ?  Take  the  advice  of  counsel,  and  set  down 
your  own  description  of  the  line  in  writing,  and  place  it  on  the 
record."  He  undertakes  to  do  so,  and  he  describes  the  line  as  we 


456  FORENSIC. 

claim  it  exactly.  After  all  that,  we  certainly  should  have  had  no  fur 
ther  trouble. 

Mr.  JUSTICE  MILLEK. — Allow  me  to  ask  you,  Mr.  Black,  how  you 
regard  the  decree  of  1858,  of  the  District  Court,  as  affecting  the  rights 
of  Berreyesa  ?  I  understand  your  argument  very  clearly,  that  the 
United  States,  being  a  party  to  that  proceeding,  is  bound  by  that  de 
cree,  so  far  as  it  settles  those  boundaries. 

Mr.  BLACK. — Yes,  they  are  settled  between  the  United  States  and 
the  claimant. 

Mr.  JUSTICE  MILLER. — Now,  as  to  Berreyesa,  who  was  not  a  party 
to  that  decree,  but  who  comes  in  on  this  survey  professing  to  be  made 
under  that  decree,  do  you  claim  that  he,  also,  is  bound  by  that  decree 
or  not  ? 

Mr.  BLACK. — The  general  rule  of  law  undoubtedly  is  that  none 
but  parties  to  the  record,  or  their  privies,  are  bound  by  the  judgment, 
sentence,  or  decree  which  may  be  pronounced  in  any  case.  Besides 
that,  the  act  of  1851  expressly  declares  that  third  parties  shall  not  be 
bound  by  a  decree  made  under  that  act  between  the  United  States  and 
the  claimants.  I  think,  therefore,  that  no  third  party  can  be  affected 
in  this  proceeding  by  the  decree  made  in  1858  between  the  United 
States  and  Fossatt. 

But  Berreyesa  is  bound  by  the  decree  in  his  own  case.  Here  were 
two  grants  which,  properly  enough,  are  called  by  the  United  States 
twin  grants.  They  were  for  two  leagues  of  land,  to  two  different  per 
sons,  with  a  defined  line  dividing  the  lands  of  one  grantee  from  those 
of  the  other.  The  rights  of  the  two  parties  were  decided  in  two  sev 
eral  cases,  and  the  division-line  was  ascertained,  in  both  cases,  to  be  at 
the  same  place.  These  two  decrees,  taken  together,  estopped  both  the 
parties.  Fossatt  can  not  assert  his  rights  to  any  land  eastward  of  that 
line,  nor  can  Berreyesa  demand  what  lies  west  of  it.  The  two  decrees 
together  are  the  same  as  a  joint  decree  against  both,  or  in  favor  of 
both ;  it  is  conclusive  between  themselves  and  conclusive  as  against 
the  United  States. 

Nevertheless,  the  judge  of  the  District  Court,  without  an  excep 
tion  which  contradicted  our  survey,  and  without  a  shadow  of  evidence 
to  show  it  was  wrong,  made  that  unaccountable  decree,  which  con 
verted  the  straight  line  into  a  crooked  one.  He  went  against  all 
parties  and  all  witnesses,  and  in  the  teeth  of  all  the  documentary  evi 
dence.  Instead  of  the  true  and  plainly  proved  line,  he  ordered  an 
other  to  be  run  which  nobody  before  had  ever  suggested  or  thought 
of.  If  this  decree,  asked  for  by  nobody,  believed  in  by  nobody,  de 
fended  by  nobody,  but  admitted  by  everybody  to  be  erroneous,  can 
not  be  set  aside,  there  is  not  much  use  for  a  Supreme  Court. 

I  have  nothing  harsh  or  disrespectful  to  say  of  the  judge  who  made 
that  decree.  He  is  not  on  trial  here.  It  is  not  the  interest  of  any- 


FORENSIC.  457 

body  to  defend  him,  and  his  station  disarms  him  of  the  power  to 
defend  himself.  I  have  no  right  to  go  beyond  a  fair  criticism  upon 
his  opinion,  and  I  can  do  that  only  so  far  as  may  be  necessary  to  show 
that  it  is,  what  I  believe  it  to  be,  a  hasty,  inconsiderate,  and  errone 
ous  judgment. 

The  judge  is  not  in  the  habit  of  deciding  a  case  without  support 
ing  it  by  reasons  either  good  or  bad  ;  he  is  skilled  in  dialectics  ;  "for 
every  why  he  has  a  wherefore."  He  has  given  us,  in  this  case,  the 
premises  and  the  reasoning  which  brought  him  to  the  conclusion  ex 
pressed  in  the  decree.  I  advert  to  them  because  they  include  all  the 
arguments  made  by  Mr.  Carlisle  and  Mr.  Williams,  as  well  as  some 
others  which  they  do  not  venture  to  reassert. 

The  first  noticeable  thing  in  the  opinion  is,  that  it  concedes  to  us 
every  fact  which  we  have  ever  asserted  with  reference  to  the  division- 
line.  The  judge  admits  that  the  true  beginning  of  it  is  at  the  forks 
of  the  creek,  that  it  runs  thence  southward  by  the  eastern  base  of  the 
lomita,  a  fact  which  he  declares  it  impossible  for  any  one  to  doubt 
who  looks  at  the  map  of  Berreyesa.  Then  he  also  admits  that  the  call 
of  the  grant  is  for  a  straight  line  upon  that  course  up  to  the  mountain. 
Why,  then,  did  he  not  follow  the  call  as  the  Surveyor-General  had 
done  before,  as  he  himself  had  done  in  all  his  former  adjudications  ? 
We  shall  see. 

He  says  that  when  Berreyesa  and  Larios  agreed  to  that  line,  he 
thinks  they  intended  it  to  run,  not  south,  but  perpendicularly  to  the 
general  direction  of  the  valley.  I  deny  this  utterly.  In  their  agree 
ment  before  the  prefect,  and  in  the  grants  which  both  afterward  ac 
cepted,  they  declared  their  intention  that  it  should  run  south,  and  not 
a  word  is  said  about  perpendicular.  But  the  intention  thus  expressed 
by  themselves  is  disregarded,  and  a  totally  different  intention  imputed 
to  them,  without  a  shadow  of  evidence  ;  and  this,  be  it  remembered, 
after  their  express  agreement  has  been  not  only  acted  upon  by  the 
Governor  and  other  Mexican  authorities,  but  after  purchases  to  the 
amount  of  millions  have  been  made,  upon  the  faith  of  it,  from  both 
parties.  It  is  remarkable,  too,  that  the  judge,  after  assuming  with 
out  evidence  that  their  intention  was  to  make  a  perpendicular  line, 
does  not  order  the  line  to  be  run  according  to  his  assumption.  He 
directs  it  to  be  carried  southward  to  the  base  of  the  lomita,  then  makes 
an  angle,  and  runs  54°  west  for  a  certain  distance,  where  he  makes 
another  angle,  and  then  goes  34°  west  of  south  to  the  mountain. 
Neither  of  these  lines  is  perpendicular  to  the  course  of  the  valley ;  for 
certainly  the  valley  can  not  have  three  perpendiculars.  The  due  south 
line  is  nearer  perpendicular  than  any  one  of  them.  It  is,  in  fact,  ex 
actly  perpendicular  to  the  direction  of  the  valley  at  that  place ;  it 
starts  at  right  angles  with  the  Pueblo  Hills,  and  strikes  the  mountain 
squarely. 


458  FORENSIC. 

The  judge  commits  another  error  of  fact  when  he  declares  that  the 
position  of  the  lomita  was  misunderstood  by  the  parties.  If  there  is 
one  thing  in  this  case  more  striking  than  another,  it  is  the  remarkable 
accuracy  with  which  the  agreement  and  the  grants  defined  the  relative 
position  of  that  little  hill  and  the  beginning-point  of  the  line.  They 
declared  that  its  eastern  base  was  south  from  the  forks  of  the  creek, 
and  an  accurate  survey  proves  it  to  be  exactly  so. 

But  he  says  that  if  the  line  be  continued  upon  that  course,  accord 
ing  to  the  calls  of  the  grant,  it  will  unfortunately  throw  nearly  the 
whole  of  the  mining  ridge  upon  the  tract  of  Larios.  This  is  an  ex 
pression  which,  I  am  confident,  the  judge  did  not  mean  to  be  under 
stood  as  it  might  be  construed  by  evil-minded  persons.  To  the  eye  of 
prejudice  or  passion,  it  looks  like  an  open  confession  of  partiality ; 
like  a  predetermination  to  relieve  the  misfortune  of  a  man  who  is  not 
the  owner  of  certain  valuable  land,  by  giving  it  to  him,  at  the  expense 
of  another  who  is.  If  such  a  sentiment  had  been  entertained,  I  think 
the  judge  would  not  have  written  it  down,  and  placed  it  upon  record. 
I  mention  it  only  as  another  evidence  of  the  haste  and  want  of  con 
sideration  with  which  the  opinion  was  written,  and  the  decree  made. 

The  judge  thinks,  and  in  this  he  is  followed  by  Mr.  Carlisle  and 
Mr.  Williams,  that  he  can  see,  in  the  shape  of  the  Sierra  Azul,  the  dif 
ferent  portions  of  the  mountain.  He  assumes  that  certain  parts  of  it, 
which  are  larger  than  other  parts,  are  intended  for  Mount  Bache  and 
Mount  Umunhum,  and  proposes  that  the  line  shall  be  run  so  as  to 
strike  the  mountain  at  the  place  where  it  terminates  on  the  map  of 
Berreyesa,  assuming  that  he  knows  where  that  place  is.  Now,  no  one 
can  cast  even  a  careless  glance  upon  the  figure,  which  Berreyesa  called 
by  the  name  of  Sierra  Azul,  without  seeing  that  it  bears  no  sort  of 
resemblance  to  the  natural  mountain  itself ;  it  was  not  intended  to  be 
a  picture  of  the  mountain.  If  one  part  is  higher  or  lower  than  the 
other,  it  was  mere  accident.  All  the  reasoning  upon  which  this  hy 
pothesis  proceeds  is  based  upon  the  assumption  that  the  different 
objects  delineated  upon  the  map  are  laid  down  in  their  proper  propor 
tions  to  one  another,  and  that  the  different  parts  of  the  same  object 
are  also  duly  proportioned.  Admit  that  assumption  to  be  false,  and 
the  whole  argument  falls  flat  to  the  ground.  It  is  utterly  false.  There 
is  no  pretense  of  proportion  about  the  map.  Here  is  a  fact  which  sets 
it  in  a  very  striking  light.  The  house  of  Berreyesa  is  proved  to  be 
exactly  thirty  feet  wide  ;  yet  it  occupies  upon  the  map  one  fifth  of  the 
space  of  the  whole  valley.  If  the  valley  is  proportioned  to  the  house, 
it  is  only  one  hundred  and  fifty  feet  wide.  If  you  take  the  valley  to 
be,  as  it  is  at  that  place,  nearly  a  mile  wide,  and  the  house  to  be  laid 
down  in  proper  proportion,  then  that  house  covers  about  two  hundred 
acres  of  ground  ;  and  if  it  be  high  in  proportion  to  its  width,  it  is  ten 
times  as  high  as  all  the  pyramids  in  Egypt,  piled  upon  one  another. 


FORENSIC.  459 

The  same  logic  that  proves  this  to  be  Mount  Umunhum,  and  that  to 
be  Mount  Bache,  would  have  shown  with  equal  certainty  that  Berrey- 
esa  lived  in  a  structure  so  vast  that  all  the  men  in  America  could  not 
have  put  it  up  in  half  a  century, 

Supposing  that  one  or  both  of  the  parties,  at  the  time  they  made 
that  agreement,  had  actually  believed  that  a  straight  line,  run  upon 
the  course  which  they  agreed  to,  would  strike  the  mountain  at  a  dif 
ferent  place,  would  that  be  a  reason  for  setting  aside  the  agreement 
and  disregarding  the  grants,  after  the  acquiescence  of  all  parties  for 
twenty  years  ?  Certainly  not.  If  a  surveyor  had  gone  upon  the 
ground,  and  had  run  that  line,  when  the  grants  were  not  more  than 
a  month  old,  and  Larios  had  said  that  he  was  disappointed  in  the  out 
come  of  the  line  he  agreed  upon,  could  any  officer  run  it  contrary  to 
the  grant  for  that  reason?  No,  the  answer  would  be,  "Your  agree 
ment  has  been  executed ;  the  grants  have  been  made  to  you  and  to 
your  neighbor  both — to  you  for  the  land  on  one  side,  to  him  for  the 
land  on  the  other  side — and  it  is  now  too  late  to  repent."  A  fortiori 
would  the  same  answer  be  given  to  Berreyesa,  and  a  multo  fortiori 
must  it  now  be  given  to  the  alienees  of  Berreyesa,  after  purchases  have 
been  made  to  so  large  an  extent  from  Larios  and  his  assigns. 

But  this  map  of  Berreyesa  does  show  conclusively  that  both  he  and 
Larios  understood  perfectly  that  the  straight  line  which  they  bargained 
for  would  run  where  it  does  run,  east  of  the  ridge,  and  east  of  the 
New  Almaden  mine.  The  ridge  divides  the  waters  of  the  Capitancil- 
los  from  those  of  the  Alamitos.  The  mine  is  near  that  ridge.  The 
Alamitos  Creek  is  laid  down  on  Berreyesa's  map.  The  division-line— 
the  line  in  controversy — as  laid  down  on  the  diseno  itself,  runs  across 
the  Alamitos  Creek,  the  whole  of  which  is  east  of  the  mine,  not  across 
the  Capitancillos,  which  is  west  of  it.  If  the  parties  were  familiar,  as 
everybody  admits  that  they  were,  with  the  ground,  then  the  line  must 
have  been  intended  by  them  to  run  very  nearly,  if  not  exactly,  where 
it  does.  This  fact,  showing  the  place  where  they  intended  to  cut  the 
creek,  is  as  conclusive  upon  the  subject  as  any  fact  of  that  nature  can 
be,  and  it  is  absolutely  without  contradiction. 

To  reverse  this  decree  is  a  legal  necessity,  and  you  can  not  do  that 
without  restoring  the  division-line  to  the  place  where  the  Surveyor- 
General  located  it.  There  is  no  other  place  for  it.  You  can  not  find, 
in  all  this  record,  any  other  description  of  that  line  which  it  is  possible 
for  you  to  follow.  If  you  take  the  exceptions  of  the  Berreyesa  party 
themselves,  you  find  them  describing  the  Survey  or- General's  line  as  the 
true  one ;  nor  is  there  a  spark  of  evidence  which  would  justify  any 
court  in  adopting  another. 

If  the  lines  of  our  survey  be  established,  if  it  be  true  that  they  are 
laid  upon  the  ground  according  to  the  calls  of  the  grant,  with  a  straight 
line  between  us  and  Berreyesa  on  the  east,  the  mountain  on  the  south, 


460  FORENSIC. 

and  the  creek  on  the  west,  are  we  not  perfectly  right  in  saying  that 
our  league  of  land  lies  up  next  to  the  mountain  ?  I  put  that  question 
now,  because  some  people  have  taken  it  into  their  heads  that  these  are 
what  they  call  external  lines,  and  that  our  grant  is  a  floating  grant. 

"We  claim  that  this  survey  is  right,  because  it  is  made  under  a  de 
cree  of  the  District  Court,  which  confirms  to  us  the  land  which  lies 
within  the  lines  of  the  survey  ;  and,  according  to  that  decree,  our  land 
is  there  and  nowhere  else.  If  it  had  been  a  floating  grant,  you  can 
not  say  that  itv  is  a  floating  decree.  Nobody  denies  that  the  decree  is 
definite  and  distinct,  and  confirms  to  us  this  specific  piece  of  land. 
The  Attorney-General  himself  does  not  deny  that  that  decree  is  bind 
ing  upon  us  and  upon  the  United  States.  Mr.  Bates,  sitting  there  in 
his  proper  seat,  yesterday  denied  that  he  meant  to  go  behind  the  de 
cree.  When  I  imputed  that  intention  to  him,  he  used  the  emphatic 
word  "never."  I  think  he  spoke  that  upon  deliberation.  But  his 
assistant  counselor  has  gone  behind  the  decree  in  the  whole  of  his  ar 
gument.  He  and  the  Attorney-General  have  been  running  foul  of 
one  another  on  that  point  all  the  time. 

Mr.  JUSTICE  CLIFFOKD. — You  contend  that  the  controversy  should 
have  ended  with  the  decree  of  1858. 

Mr.  BLACK. — Nay  ;  I  know  that  it  did  end  there.  If  that  decree 
had  been  brought  up  on  appeal,  this  court  might  have  reviewed,  and 
reversed  or  affirmed  it.  Thus,  you  might  have  declared  that  the  land 
did  not  lie  there  ;  but  inasmuch  as  the  decree  of  1858  is  in  full  force, 
and  is  a  confirmation  of  the  very  land  surveyed  to  us,  and  a  confirma 
tion  of  no  other  land,  the  survey  is  right  if  it  follows  the  decree  ;  and 
if  not,  not.  Without  an  appeal  from  the  decree  of  1858,  the  same 
question  there  determined  can  not  be  raised  in  another  and  a  different 
case.  The  Attorney- General  admits,  what  is  manifestly  true,  that  this 
is  a  different  case. 

Mr.  JUSTICE  CLIFFORD. — There  has  been  a  new  survey  and  new 
evidence  since  then. 

Mr.  BLACK. — There  has  been  a  survey,  and  new  evidence  by  pri 
vate  parties  has  been  given,  to  show  that  it  is  wrong.  No  evidence 
has  been  offered  on  the  subject,  one  way  or  the  other,  by  or  against 
the  United  States,  for  the  United  States  have  admitted  it  to  be  right. 
As  between  us  and  the  United  States,  what  is  the  standard  of  right 
and  wrong  by  which  the  survey  is  to  be  judged  ?  Certainly  nothing 
in  the  world  but  its  correspondence,  or  failure  to  correspond,  with  the 
decree  which  had  previously  settled  our  boundaries.  The  survey  was 
open  to  such  objections  on  the  part  of  the  Government  as  would  show 
that  it  did  not  correspond  with  the  decree  ;  the  United  States  might 
have  said,  "  This  survey  is  erroneous,  because  it  differs  from  the  de 
cree  " ;  but  neither  they  nor  the  claimant  could  allege  that  it  was 
wrong  because  it  followed  the  decree. 


FORENSIC.  461 

We  are  not  bound  to  prove  that  the  construction  given  to  the  grant 
was  right.  Suppose  it  was  a  floating  grant>  the  court  below  has  con 
clusively  determined  that  it  is  for  a  certain  specific  league  of  land. 
If  the  grant  were  utterly  lost,  if  it  were  buried  in  the  bosom  of  the 
ocean,  if  every  witness  that  had  ever  seen  it  was  dead,  if  all  memory  of 
it  was  extinguished  from  the  face  of  the  earth,  we  should  still  have 
a  good  title  to  that  particular  league  of  land,  by  virtue  of  the  decree. 

That  decree  not  only  stands  in  full  force  and  unimpeachable,  by 
virtue  of  its  own  inherent  and  essential  force,  but  there  is  another 
reason  why  it  can  not  be  moved.  This  court  pronounced  exactly  the 
same  opinion,  and  gave  the  same  construction  to  the  grant  that  the 
court  below  did.  You  declared  that  there  was  no  ambiguity  about 
the  grant,  that  the  boundaries  of  the  land  were  well-defined  on  three 
sides,  and  that  the  fourth  line  should  be  run  for  quantity.  The  de 
cree  of  the  court  below,  and  the  survey  now  under  revision,  both  fol 
lowed  the  decision  here.  Has  the  court  the  right  now  to  go  behind 
its  own  decision  ?  I  say,  No.  In  Pennsylvania  it  has  been  held  that 
the  Supreme  Court  may  reverse  a  judge  of  the  Common  Pleas,  and 
then,  when  he  follows  the  decision,  reverse  him  again,  and  so  on  toties 
quoties,  as  often  as  the  higher  tribunal  sees  proper  to  change  its  mind. 
I  maintain  that  a  decision  once  pronounced  by  the  court  of  last  re 
sort  becomes  the  law  of  that  case,  and  all  courts,  including  the  one 
which  made  it,  are  bound  by  it  ever  afterward,  so  far  as  that  same 
case  is  concerned.  I  am  glad  to  know  that  this  rule  is  acknowledged  in 
California.  In  the  twentieth  volume  of  "  California  Keports,"  Lees 

vs. ,  is  an  opinion  of  which  the  reasoning  is  very  conclusive,  and 

the  authorities  full,  to  show  that  such  is  and  ought  to  be  the  rule. 

But  suppose  you  are  not  technically  bound  by  your  decision,  are 
you  not  morally  bound  to  stand  by  it  ?  Can  this  court,  consistently 
with  the  obligation  it  owes  to  the  country,  go  back  and  reverse  a  de 
cision  made  by  it  six  years  ago,  settling  the  title  to  a  most  valuable 
piece  of  property,  and  thus  ruin  thousands  of  men  who  have  invested 
their  capital,  and  their  enterprise,  and  their  industry,  in  purchases 
which  they  made  upon  the  faith  of  that  decision  ? 

However  that  may  be,  is  it,  can  it  be,  a  debatable  point  that  the 
parties  to  the  decree  in  the  District  Court  are  bound  by  it,  they  and 
their  privies  ?  If  it  be  thought  necessary  to  prove  that  the  decree  is 
right,  I  can  do  that  against  all  comers.  If  your  honors  think  you 
have  jurisdiction  in  this  case  to  rejudge  the  justice  that  was  adminis 
tered  between  the  same  parties  in  another  case,  you  will  find  that  the 
construction  given  to  the  grant  by  the  District  Court  was  exactly 
what  it  ought  to  have  been.  It  was  not  a  floating  grant  any  more 
than  it  was  a  floating  decree.  The  land  granted  by  the  Mexican  na 
tion  to  Justo  Larios  is  defined. 

It  can  not  be  reasonably  pretended  that  the  lines  described  in  the 


462  FORENSIC. 

grant  are  not  the  lines  of  the  very  tract  which  the  Governor  intended 
to  be  his  property.  His  league  of  land  was  intended  to  be  colindante 
con  la  Sierra  on  the  south.  Can  that  have  any  meaning  but  one  ? 
Upon  that  boundary  his  land  must  lie  on  that  side,  extending  to  the 
east  as  far  as  Berreyesa's  line,  and  westward  to  the  creek.  Where, 
then,  shall  the  north  line  run  ?  Just  so  far  north  of  the  mountain  as 
may  be  necessary  to  take  in  the  requisite  quantity.  Let  me  illustrate. 
Suppose  I  have  a  lot  of  ground  in  the  city  of  Philadelphia,  contain 
ing  forty  perches,  and  extending  in  an  oblong-square  from  Chestnut 
Street  on  the  north  to  Walnut  Street  on  the  south.  I  sell  to  my 
neighbor  twenty-five  perches,  and  describe  what  I  sell  to  him  as  being 
bounded  "  on  the  north  by  Chestnut  Street,  on  the  west  by  Ninth 
Street,  on  the  east  by  an  alley,"  and  I  say  nothing  about  the  fourth 
line,  because  I  do  not  know  precisely  where  it  can  be  run  so  as  to  in 
clude  the  twenty-five  perches.  But  I  make  that  fourth  line  just  as 
certain,  by  the  limitation  of  quantity,  as  if  I  had  described  it  upon  the 
ground.  Would  you  not  say  of  such  a  contract  what  Judge  Camp 
bell  said  of  the  grant  to  Larios,  "  There  is  no  ambiguity  about  it "  ? 
If  my  grantee,  under  such  a  contract,  would  insist  upon  a  convey 
ance  for  the  southern,  or  Walnut  Street,  end  of  the  lot,  would  I  not 
give  him  a  conclusive  answer  when  I  would  show  him  that  Chestnut 
Street  was  the  boundary  by  which  he  bought  ?  Upon  the  other  hand, 
if  I,  finding  the  Chestnut  Street  end  of  the  lot  to  be  the  most  valua 
ble  of  the  two,  should  insist  upon  his  taking  the  other,  and  go  into 
court  with  him  upon  the  controversy,  is  it  likely  that  I  would  find 
a  member  of  the  legal  profession  low  enough  to  undertake  my  cause  ? 

Again,  suppose  that  Justo  Larios  had  taken  a  grant  from  the 
Governor  describing  the  subject-matter  as  a  league  of  land  bounded 
on  the  north  by  the  Pueblo  Hills,  with  two  side  lines  on  the  east  and 
west,  but  without  any  call  for  a  south  line,  and  then  suppose  that 
Larios,  or  his  alienees,  after  the  discovery  of  quicksilver  in  the  hills, 
had  determined  to  claim  by  the  mountain  as  a  southern  boundary,  and 
measure  back  between  the  side  lines  toward  the  north  for  quantity, 
would  not  such  a  claim  be  overwhelmed  with  contempt  as  soon  as  it 
was  set  up  ?  Yet  this  is  the  very  thing  which  our  adversaries  are  con 
tending  that  Larios  has  not  only  a  right  to  do,  but  which  they  de 
clare  he  is  bound  to  do.  They  insist  that  he  must  abandon  the 
boundary-line  that  is  given  to  him  upon  the  mountain,  and  the  land 
which  was  granted  to  him,  and  go  down  to  the  Pueblo  Hills,  where  he 
has  no  boundary,  and  take  land  to  which  he  has  no  title. 

If  we  can  abandon  the  boundary  that  is  assigned  to  us  in  the  grant, 
and  go  northward  to  locate  our  tract  elsewhere,  how  far  may  we  go 
and  what  shall  be  the  rule  ?  There  is  nothing  said  in  the  grant  about 
the  Pueblo  Hills.  There  is  nothing  there  to  stop  us.  The  moment 
we  cut  loose  from  the  mountain,  we  are  launched  out  into  unlimited 


FORENSIC.  463 

space ;  we  may  go  down  to  the  bay,  or  beyond  it,  just  as  well ;  the 
world  is  all  before  us  where  to  choose  ;  and  if  they  can  drive  us  from 
the  mountain,  they  can  send  us  off  for  an  indefinite  cjistance. 

But  let  us  assume,  argumenti  gratia,  that  this  was  a  floating 
grant ;  concede  all  that  has  ever  been  averred  by  the  other  side  upon 
that  point  :  then  Larios  had  a  right  to  locate  his  land  according  to 
his  own  election,  anywhere  within  the  space  that  lies  between  the 
mountain  and  the  fictitious  north  line  assumed  by  our  opponents. 
And  has  he  not  elected  ?  Who  will  deny  that  the  survey  is  an  elec 
tion  ?  It  is  not  only  his  election,  but  an  election  which  he  was  assisted 
to  make  by  the  officers  of  the  Government  themselves.  It  was  ap 
proved  by  the  judicial  tribunals  to  whom  that  subject  was  committed  ; 
it  was  approved  by  the  Surveyor-General,  whose  duty  it  was  to  mark 
the  lines  upon  the  ground  ;  it  was  approved  by  the  Attorney-General, 
the  law  officer  of  the  Government,  whose  function  it  was  to  make 
objections  to  it  if  any  just  or  legal  objection  existed.  He  claimed  his 
league  of  land  upon  the  mountain,  and  so  far  down  upon  the  plain  as 
was  necessary  to  take  in  the  quantity,  and  left  the  land  south  of  him 
to  be  used  by  the  Government  as  it  saw  proper.  The  Government 
accepted  what  was  assigned  to  it,  surveyed  it,  and  invited  all  persons 
who  desired  to  settle  upon  it  to  come  and  take  possession.  Now  the 
Attorney-General  proposes  to  unsettle  what  he  settled  before,  to 
change  what  was  fixed  by  his  own  act.  The  effect  (I  do  not  say  the 
design)  would  be  to  defraud  those  who  have  purchased  from  Fossatt 
since  the  election,  and  give  his  alienees  no  redress  except  what  might 
consist  in  making  reprisals  upon  the  grantees  of  the  Government  who 
bought  upon  the  faith  of  the  same  election.  But  the  Attorney-Gen 
eral  insists  that  we  did  not  make  our  election  properly.  What  right 
has  he  to  say  that  now  ?  Why  did  he  not  tell  us  it  was  wrong  when 
we  were  in  the  District  Court  together,  for  the  very  purpose  of  having 
the  errors  of  it  corrected  ?  What  right  has  he  now  to  complain,  after 
his  former  silence  has  induced  the  expenditure  of  millions  upon  the 
faith  of  it  ?  It  is  impossible  that  he  can  believe  it  just  or  fair  to 
make  a  bouleversement  at  this  time  of  day. 

Those  who  say  that  this  was  a  case  for  election  have  impugned  the 
election  actually  only  on  one  ground  :  it  does  not  cover  the  land  sold 
by  Laurencel,  as  the  attorney  of  Fossatt,  to  Isaac  Foster.  I  admit  that 
where  the  owner  of  a  floating  grant  sells  out  his  right,  and  describes 
the  location  of  it  in  his  deed,  neither  he  nor  his  grantee  can  properly 
or  justly  have  it  located  in  another  place.  That  may  often  be  true 
where  a  part,  as  well  as  the  whole,  has  been  sold.  But  the  sale,  in  order 
to  have  any  such  effect,  must  imply  not  only  an  assertion  of  right  to 
the  land  so  sold,  but  a  relinquishment  of  all  claim  to  other  land. 
Election  means  a  choice  between  two  things  by  a  person  who  can  not, 
and  who  knows  he  can  not,  have  both.  A  man  who  has  a  title  to 


464  FORENSIC. 

a  certain  specific  piece  of  land,  and  who,  mistaking  his  boundaries, 
makes  a  sale  outside  of  them,  is  still  safe  in  his  original  claim.  By 
selling  that  which  is  not  his,  he  does  not  forfeit  what  belongs  to  him. 
It  is  also  another  rule  that,  where  several  sales  have  been  made,  the 
final  election  must  be  consistent  with  the  elder,  and  not  with  the  later, 
sales. 

Now  look  at  this  sale  to  Foster,  and  the  other  sales  that  have  been 
made  by  Larios  and  his  alienees.  It  was  in  1853  that  Foster  bought 
a  small  piece  of  land  near  the  creek.  He  had  squatted  there  upon  pub 
lic  land.  Doubtless  he  had  heard  the  big  boasts  of  the  New  Almaden 
Company,  that  they  would  drive  us  from  the  hills  down  upon  the  plain. 
He  thought  it  best  to  get  a  quit-claim  deed.  Laurencel,  then  acting 
as  attorney  for  Fossatt,  was  willing  to  give  him  a  conveyance  of  such 
right  as  his  principal  had,  but  refused  to  covenant  against  the  title  of 
the  United  States. 

Now  the  Attorney-General  is  desperately  concerned  for  Foster; 
his  righteous  soul  is  vexed  from  day  to  day  for  fear  that  Isaac  Foster 
will  suffer  by  the  location  which  he  consented  to  himself  three  years 
ago.  He  urges  upon  you  the  sufferings  of  Foster,  though  Foster  him 
self  implores  him  simply  to  let  his  business  alone,  and  sends  here  one 
of  the  most  distinguished  counselors  in  the  country,  Mr.  Johnson,  to 
say  that  he  is  entirely  satisfied,  and  to  get  him  out  of  this  business  alto 
gether. 

But  while  the  Attorney-General  is  thus  sorely  tried  by  his  sym 
pathy  for  Foster,  his  heart  has  no  drop  of  pity  in  it  for  other  persons, 
who  bought  the  other  end  of  the  land  long  before  Foster.  Larios 
sold  to  Grove  Cook  in  1845,  referring  for  his  southern  boundary  to 
the  grant  which  called  for  the  mountain.  Cook,  in  1847,  made  open 
claim,  and  gave  universal  notice  of  his  right  to  go  to  the  mountain,  by 
the  survey  which  Snyder  made  for  him  upon  the  ground.  In  1850 
Cook  sold  to  Wiggins,  describing  the  southern  boundary  as  being  at 
the  mountain.  Wiggins  mortgaged  the  land  to  two  different  persons, 
and  again  the  description  of  the  southern  boundary  was  the  mount 
ain.  Both  mortgagees  foreclosed  upon  him,  and  the  decrees  of  fore 
closure  made  by  the  County  Court  declared  the  mountain  to  be  the 
boundary.  By  that  boundary  the  land  was  sold  at  sheriff's  sale,  and 
Fossatt  bought  it.  Fossatt  sold  one  quarter  of  a  league  to  the  Guada- 
lupe  Mining  Company,  again  by  the  mountain  boundary.  These 
vendees  entered  into  possession  by  that  boundary,  expended  large 
sums  of  money,  and  made  valuable  improvements.  All  these  sales 
were  made  long  before  the  quit-claim  deed  to  Foster  for  his  little 
piece  down  at  the  creek.  It  was  before  that  time  that  Fossatt  and  the 
Guadalupe  Mining  Company  both  presented  their  claim  to  the  Land 
Commission,  and  that  claim  was  adjudicated  in  their  favor,  and  the 
mountain  assigned  to  them  as  a  boundary. 


FORENSIC.  465 

But  all  these  real  sales  on  the  northern  side  are  ignored  on  account 
of  the  subsequent  quit-claim  deed  to  Foster.  The  millions  for  which 
the  southern  side  sold  are  to  count  nothing.  It  is  no  harm  to  swindle 
the  purchasers  there,  but  it  would  be  terrible  if  anything  but  good 
should  happen  to  Isaac  Foster.  Will  not  the  Attorney-General  con 
descend  to  remember  that  Foster  is  begging  him  to  let  his  business 
alone  ? 

I  suppose  some  reply  is  due  to  that  part  of  the  argument  made  by 
the  assistant  counsel  of  the  United  States,  which  has  neither  been 
directly  repudiated  nor  expressly  indorsed  by  the  Attorney-General. 
The  gentleman  who  made  it  appears  to  believe  in  it  himself,  for  he 
uttered  it  with  all  the  ardor  of  conviction. 

It  is  a  most  wonderful  thing,  a  phenomenon  such  as  I  have  never 
seen  in  a  court  of  justice  before,  that  any  counselor  should  undertake 
to  reverse  and  totally  change  a  decree  from  which  the  party  he  rep 
resents  has  taken  no  appeal,  and  upon  grounds  which  were  not  made 
known  in  the  court  below.  Mr.  Wills  must  have  overlooked  that  part 
of  the  record  which  shows  that  the  United  States  took  no  appeal  in 
this  case.  It  can  not  be  possible  that  he  did  not  know  the  rule  of 
law  which  makes  an  appeal  indispensably  necessary  to  such  a  purpose. 
He  is  not  a  very  young  man  ;  he  has  had  many  opportunities  of  learn 
ing  that  simple  and  well-defined  truth.  Indeed,  it  has  been  decided 
several  times  during  this  very  term,  in  cases  where  he  himself  was 
concerned  for  the  United  States.  He  must  have  supposed  that  the 
United  States  did  take  an  appeal.  That  is  the  only  explanation  that 
can  be  given  of  his  conduct.  When  I  correct  him  upon  that  matter 
of  fact,  I  have  given  a  sufficient  answer  to  all  that  he  has  said  about 
the  decree. 

He  not  only  opposes  the  decree  now  under  review,  but  he  denounces 
everything  that  has  been  done  in  the  case,  from  its  beginning  to  the 
present  time.  He  declares,  in  substance,  that  everybody  who  has  ever 
been  engaged  in  this  cause  ;  all  the  counselors  concerned  in  it  at  every 
period  of  the  litigation  ;  all  the  judges  who  have  ever  examined  it ; 
all  the  surveyors  who  have  ever  gone  upon  the  ground — misunderstood 
the  whole  subject  entirely.  He,  and  he  alone,  has  comprehended  the 
case  rightly,  and  practically  applied  to  it  the  true  principles.  He  has 
surrounded  the  subject,  he  says,  after  the  manner  of  a  circular  hunt, 
and  driven  everything  before  him  in  toward  the  center  from  every 
part  of  the  circumference.  We,  says  he,  take  our  stand  upon  the  lo- 
mita  in  the  center  of  the  valley,  and  we  dissipate  all  the  fogs,  and 
clouds,  and  darkness,  like  the  blaze  of  the  noonday  sun.  We  may  ad 
mit  this  remarkable  superiority  of  his,  and  still  fairly  object  to  its 
exhibition  now.  We  ought  to  have  had  the  benefit  of  this  luminous 
exposition  while  it  was  yet  possible  to  walk  by  it.  If  the  Attorney- 
General  had  an  assistant  counselor  who  was  capable  of  being  to  this 
30 


466  FORENSIC. 

subject  what  the  sun  is  to  the  universe,  he  ought  to  have  mounted 
him  on  that  lomita,  and  set  him  to  blazing  there  a  good  while  ago. 
It  is  cruel,  at  this  late  hour,  to  burst  upon  us  with  this  overpowering 
splendor,  only  for  the  purpose  of  showing  that  we  are  ruined  past 
recall.  He  should  not  have  hid  his  candle  under  a  bushel,  or,  rather, 
he  should  not  have  closed  the  sun  up  in  a  dark-lantern,  for  all  this 
length  of  time,  and  left  us  to  grope  about  in  darkness  and  in  igno 
rance. 

Mr.  Wills  asserts  that  his  demonstration  is  perfectly  complete  ;  he 
has  settled  the  whole  affair  as  nobody  else  ever  thought  of  settling  it 
before,  and  nothing  remains  for  the  court  to  do  but  to  order  an  entire 
new  set  of  surveys  to  be  made.  And  how  ?  "According  to  the  con 
clusions  of  this  argument,"  says  he.  You  are  invited,  as  I  under 
stand  him,  to  put  his  argument  into  the  mandate,  and  send  it  down 
to  the  Surveyor-General,  with  orders  to  make  a  survey  accordingly. 

I  beg  leave  to  express  my  doubts  about  this.  With  much  defer 
ence  I  submit  to  the  court  the  question  whether  it  is  not  just  as 
likely  that  Mr.  Wills  is  mistaken  as  it  is  that  everybody  else  has  been 
blundering  for  the  last  fifteen  years.  I  will  examine  what  he  calls  his 
three  "leading  propositions,"  which  he  thinks  he  has  so  completely 
demonstrated.  But,  before  I  do  that,  you  will  allow  me  to  show  what 
his  ideas  of  a  demonstration  are. 

By  the  Larios  diseno  the  Sierra  del  Encino  is  delineated  on  the 
southern  side  of  the  tract,  and  the  Pueblo  Hills  on  the  northern  ;  the 
Lomas  Bajos  are  not  laid  down  at  all.  What  is  meant  in  the  nomen 
clature  of  that  country  by  the  Sierra  del  Encino  can  not  be  a  subject 
of  the  smallest  doubt.  The  great  oak-tree  on  the  side  of  the  main 
elevation  proves  itself.  When  Larios  called  the  mountain  depicted  on 
his  map  by  the  name  of  Sierra  del  Encino  it  was  impossible  to  say 
that  he  meant  the  low  hills,  which  were  never  called  by  that  name. 
He  meant  the  mountain,  and  he  said  so  in  writing  on  the  diseno 
itself.  But  Mr.  Wills  thinks  he  has  demonstrated  the  fact  to  be 
otherwise.  And  such  a  demonstration  !  He  took,  in  your  presence, 
the  two  diseno s  of  Larios  and  Berreyesa  and  put  them  together,  and 
by  a  little  pulling  and  hauling  could  make  the  Sierra  del  Encino  on 
one  map  nearly  fit  to  Lomas  Bajos  on  the  other.  Now,  if  two  adjoin 
ing  tracts  of  land  were  both  carefully  measured  by  the  same  person, 
and  with  the  same  instruments,  and  a  map  of  both  made  upon  the 
same  scale,  you  would  expect  the  different  parts  to  fit  one  another, 
but  otherwise  you  would  not,  and  could  not,  expect  any  such  thing. 
These  two  tracts  were  never  measured  at  all.  The  maps  were  made 
without  measurement,  by  different  persons,  without  concert  between 
them,  and  without  the  slightest  reference  in  either  to  any  kind  of 
scale  or  proportion.  The  chances  that  an  object  delineated  upon  both 
would  be  laid  down  at  places  exactly  corresponding,  do  not  amount 


FORENSIC.  467 

to  one  in  a  million.  Yet  this  has  been  called  a  demonstration  !  Now, 
let  us  look  at  the  other  demonstrations. 

He  says  that  in  this  case  the  petition,  as  well  as  the  grant,  was  for 
the  yalley,  and  the  valley  extends  to  the  foot  of  the  low  hills  ;  that  is 
the  natural  boundary  of  the  valley  ;  and  the  natural  boundary  of  the 
valley  is  the  legal  boundary  of  the  grant  :  ergo,  our  limit  must  be  the 
foot  of  the  low  hills,  and  not  the  mountain,  where  we  have  proved 
that  our  line  runs.  These  facts  are  not  true  ;  but  pass  that  and  look 
at  the  logic.  The  proposition  means,  if  it  means  anything,  that  the 
name  by  which  a  ranch  is  called  in  the  grant  ought  to  determine  its 
limits,  and  not  the  lines  which  are  expressly  given  as  boundary-lines. 
Let  me  show  you  how  such  a  rule  would  work. 

All  the  grants  in  California,  or  nearly  all,  have  names.  These 
names  are  selected  arbitrarily,  and  very  often  without  any  regard  to 
the  fitness  of  things.  One  person  calls  his  rancho  by  Spanish  words 
which  signify  "  a  willow  grove,"  because  there  are  willows  on  a  few 
acres  of  it  at  one  corner.  According  to  this  new  doctrine  he  can  take 
nothing  but  the  willows,  though  his  lines  may  include  a  hundred 
times  as  much.  Another  has  a  tract  that  is  called  "Los  Picos,"  be 
cause  there  are  several  sharp  hills  in  the  center.  Shall  he  be  held  to 
the  tops  of  the  hills  ?  Another  is  named  "Isla  de  Santa  Rosa,"  be 
cause  a  river  runs  through  the  tract,  and  in  the  river  is  a  little  island 
called  "Santa  Rosa";  but  the  tract  itself  is  five  or  six  leagues  in 
extent,  while  the  island  contains  not  more  than  three  or  four  acres. 
An  unfortunate  gentleman  is  the  owner  of  a  grant  named  in  the  title- 
papers  "Rio  de  los  Americanos."  Measuring  it  by  the  lines  given  in 
the  grant,  it  extends  along  the  bank  of  the  American  River  four 
leagues,  and  has  a  depth  of  two  leagues.  To  this  he  is  entitled,  if  the 
calls  of  the  grant  prevail ;  but,  if  the  name  that  the  Governor  called 
it  by  is  the  only  standard,  then  the  bed  of  the  river  is  all  he  can  take. 

But  the  reductio  ad  absurdum  is  furnished  in  this  very  case.  The 
grant  issued  to  Berreyesa  is  named  "Canada  de  los  Capitancillos." 
The  grant  to  Larios  is  for  "Los  Capitancillos."  Berreyesa  must, 
therefore,  have  the  valley  of  the  Little  Captains,  while  Larios  can  take 
nothing  but  the  Little  Captains  themselves.  The  natural  boundaries 
of  the  two  little  Indians  are  the  legal  boundaries  of  his  grant,  and  he 
can  have  no  more  ! 

It  is  a  waste  of  words  to  spend  them  in  refuting  such  a  "  demonstra 
tion  "  as  that.  It  is  enough  to  answer  it  by  simply  saying  that  we 
claim  according  to  our  line.  The  counselors,  and  the  judges,  and  the 
surveyors,  who  have  considered  this  case  so  long  and  so  carefully,  have 
not  been  mistaken  in  supposing  that  to  be  the  true  rule.  The  United 
States,  speaking  by  the  mouth  of  their  own  Attorney-General,  here  in 
your  presence,  have  declared  that  the  calls  of  the  grant  must  govern. 
You  will  not,  I  trust,  forget  the  plain  and  unequivocal  admission  to 


468  FORENSIC. 

that  effect  made  by  Mr.  Bates,  which  puts  him  in  direct  conflict  with 
his  assistant  counselor. 

The  gentleman  has  another  demonstration.  He  says  there  ought 
to  be  such  a  survey  made  here  that  those  who  were  colindantes  under 
the  Mexican  Government  will  continue  colindantes  under  the  Ameri 
can  Government.  If  he  means  by  this  to  say  that  we  must  go  upon 
all  sides  of  our  tract,  to  those  places  and  things  which  the  grant  calls 
for  as  our  colindantes,  I  admit  it,  of  course.  It  is  for  that  reason  that 
the  mountain  is  our  southern  boundary,  Berreyesa's  line  the  eastern, 
and  the  creek  the  western.  But  his  application  of  the  principle 
seems  to  be  that  we  ought  to  leave  our  colindantes  on  the  south,  east, 
and  west,  and  go  northward  to  find  a  boundary  which  the  grant  does 
not  mention.  A  man  named  Bernal  has  a  grant  on  the  northern  side 
of  the  Pueblo  Hills,  concerning  which  the  expediente,  the  grant,  and 
all  our  title-papers  are  profoundly  silent.  Mr.  Wills  thinks  we  should 
manage  to  lay  our  tract  next  to  his,  which  is  not  called  for,  at  the 
expense  of  taking  it  miles  away  from  the  other  boundaries,  which  are 
called  for. 

Another  of  his  "leading  propositions"  is  that  these  surveys,  both 
of  Berreyesa  and  Larios,  should  be  laid  out  in  rectangular  parallelo 
grams  ;  all  the  sides  should  be  straight,  and  all  the  corners  should  be 
right  angles.  I  answer,  that  if  the  calls  of  the  grant  are  for  rectan 
gular  parallelograms,  it  ought  to  be  laid  out  so  ;  but,  if  one  of  our 
lines  lies  along  the  foot  of  the  mountain,  and  the  mountain  is 
crooked,  we  can  not  remove  the  mountain ;  or,  if  it  be  a  creek,  it 
must  be  remembered  that  streams  of  water,  in  all  countries,  will 
meander. 

The  honor  of  the  United  States  is  deeply  concerned  in  this  case. 
The  land  we  are  claiming  never  belonged  to  this  Government.  It  was 
private  property,  under  a  grant  made  long  before  our  war  with  Mex 
ico.  When  the  treaty  of  Guadalupe  Hidalgo  came  to  be  ratified — at 
the  very  moment  when  Mexico  was  feeling  the  sorest  pressure  that 
could  be  applied  to  her  by  the  force  of  our  armies  and  the  diplomacy 
of  our  statesmen— she  utterly  refused  to  cede  her  public  property  in 
California  unless  upon  the  express  condition  that  all  private  titles 
should  be  faithfully  protected.  We  made  the  promise.  The  gentle 
man  sits  on  that  bench  who  was  then  our  minister  there.  With  his 
own  right  hand  he  pledged  the  sacred  honor  of  this  nation  that  the 
United  States  would  stand  over  the  grantees  of  Mexico  and  keep  them 
safe  in  the  enjoyment  of  their  property.  The  pledge  was,  not  only 
that  the  Government  itself  would  abstain  from  all  disturbance  of  them, 
but  that  every  blow  aimed  at  their  rights,  come  from  what  quarter  it 
might,  should  be  caught  upon  the  broad  shield  of  our  blessed  Consti 
tution  and  our  equal  laws. 

It  was  by  this  assurance,  thus  solemnly  given,  that  we  won  the 


FORENSIC.  469 

reluctant  consent  of  Mexico  to  part  with  California.  It  gave  us  a 
domain  of  more  than  imperial  grandeur.  Besides  the  vast  extent  of 
that  country,  it  has  natural  advantages  such  as  no  other  can  boast. 
Its  valleys  teem  with  unbounded  fertility,  and  its  mountains  are  filled 
with  inexhaustible  treasures  of  mineral  wealth.  The  navigable  rivers 
run  hundreds  of  miles  into  the  interior,  and  the  coast  is  indented  with 
the  most  capacious  harbors  in  the  world.  The  climate  is  more  health 
ful  than  any  other  on  the  globe.  Men  can  labor  longer  with  less 
fatigue ;  the  vegetation  is  more  vigorous,  and  the  products  more 
abundant ;  the  face  of  the  earth  is  more  varied,  and  the  sky  bends 
over  it  with  a  lovelier  blue.  Everything  in  it  is  made  upon  a  scale 
of  magnificence  which  a  man  living  in  such  a  commonplace  region  as 
ours  can  scarcely  dream  of — 

"...  which  his  eye  must  see 
To  knew  how  beautiful  this  world  can  be." 

That  was  what  we  gained  by  the  promise  to  protect  men  in  the 
situation  of  Justo  Larios,  their  children,  their  alienees,  and  others 
deriving  title  through  them.  To  let  them  be  plundered  in  the  face  of 
such  a  pledge  would  be  the  last  point  to  which  human  baseness  could 

go- 
How  would  such  a  story  as  this  sound  in  the  ears  of  the  world  ? 
The  United  States  obtained  unlimited  wealth  by  promising  to  protect 
private  property  under  Mexican  grants.  The  protection  was  claimed 
by  a  grantee  whose  land  was  more  than  commonly  valuable.  He  pro 
duced  his  title,  and  all  the  public  officers  admitted  it  to  be  genuine, 
honest,  and  valid.  A  captious  objection  was  raised  to  his  boundaries  ; 
but  he  met  it  by  proof  so  simple  and  clear  that  he  confounded  all  op 
position.  Witness  after  witness  testified  in  his  favor,  and  not  one 
against  him.  Survey  after  survey  defined  his  limits  with  mathemati 
cal  precision,  and  no  man  could  be  found  ingenious  enough  to  make 
any  other.  Decree  after  decree,  to  the  number  of  nine,  pronounced 
his  right  to  be  incontestable.  At  length  the  chief  law  officer  of  the 
Government  interposed  his  authority  to  stop  this  persecution,  by  de 
claring  that  no  further  objection  should  be  made,  and  no  more  appeals 
should  be  taken.  The  title  thus  proved,  thus  adjudicated,  thus  ac 
knowledged,  passed  rapidly  from  hand  to  hand,  the  price  increasing 
at  every  transfer,  until  it  swelled  into  millions.  But,  six  years  after 
the  last  decree,  and  three  years  after  the  Attorney-General  had  decided 
in  favor  of  the  title,  that  same  Attorney-General  came  into  the  Su 
preme  Court,  without  an  appeal  from  the  court  of  original  jurisdic 
tion,  and  demanded  that  this  same  property  should  be  taken  for  pub 
lic  use,  upon  grounds  which  the  owners  had  never  been  allowed  the 
chance  of  disproving. 

To  suppose  it  possible  that  your  honors  might  accede  to  this  un- 


470  FORENSIC. 

lawful  and  unjust  request  would  be  inconsistent  with  the  respect  due 
to  the  court.  But  I  can  imagine  how  such  a  sentence  would  shock 
the  moral  sense  of  the  world.  It  would  be  an  act  of  such  gross  and 
shameless  perfidy  as  never  blackened  the  brow  of  any  nation  before. 


PEIRCE  vs.  THE  UNITED  STATES.    (FLOYD  ACCEPT 
ANCES.) 

8UPKEME    COTJET    OF    THE    UNITED    STATES. 

THESE  claimants  have  been  treated  hardly  and  harshly,  even  if 
their  right  had  been  doubtful,  which  it  is  not.  They  were  refused 
payment  at  the  War  Department,  and  no  reason  was  given.  Congress 
declined  to  interfere,  though  a  committee  of  the  Senate  reported  in 
their  favor;  and,  what  was  still  worse,  they  were  compelled  to  see 
their  case  mutilated  and  disfigured  by  the  Court  of  Claims. 

It  is  now  to  be  determined  just  like  a  cause  between  two  private 
parties.  When  the  sovereign  comes  into  a  court  he  submits  his  rights 
to  the  same  test  that  would  be  applied  to  those  of  anybody  else.  The 
rules  of  pleading  and  evidence  are  the  same  ;  the  means  of  ascertain 
ing  the  truth  are  the  same,  and  the  truth,  when  it  is  ascertained,  has 
precisely  the  same  effect  and  operation.  In  a  case  remarkably  similar 
to  this,  tried  before  Judge  Baldwin,  in  the  Circuit  Court,  it  was  sug 
gested  to  him  that  he  ought  to  look  to  the  interests  of  the  United 
States.  He  seemed  to  resent  it ;  he  sat  there  not  to  take  care  of  any 
body's  interests,  public  or  private,  but  to  adjudicate  upon  the  rights 
of  two  litigant  parties  ;  both  were  entitled  to  justice  ;  neither  of  them 
to  favor.  In  the  United  States  vs.  The  Bank  of  the  Metropolis,  this 
court  unanimously  declared  that,  when  the  United  States  became  par 
ties  to  negotiable  paper,  they  acquired  precisely  the  same  rights,  and 
subjected  themselves  to  the  same  liabilities,  as  a  private  party.  The 
judges  of  that  time,  all  of  them,  declared  that  they  knew  of  no  differ 
ence,  except  that  the  United  States  could  not  be  sued.  But  now  they 
can  be  sued.  The  only  difference  that  ever  did  exist  is  abolished  by 
the  act  of  Congress  which  gives  the  jurisdiction  you  are  now  exercising. 

If  this  were  a  case  between  two  individuals,  would  there  be  any 
doubt  about  it  ?  The  rules  of  commercial  law,  which  define  the  rights 
and  obligations  of  parties  to  a  bill  of  exchange,  are  the  simplest  part 
of  our  jurisprudence.  They  are  founded  on  the  principles  of  com 
mon  honesty,  which  every  man  is  bound  to  observe  at  his  peril,  and 
which  no  man  can  violate  without  being  conscious  that  he  has  done 
wrong.  They  are  so  reasonable  and  natural  that  they  are  the  same  all 
over  the  world.  They  are  understood  alike,  not  merely  by  judges  and 


FORENSIC. 

lawyers,  but  by  all  business  men  of  common  capacity ;  and  so  well 
understood  that,  though  papers  of  this  kind  are  made  every  day,  by 
thousands  and  tens  of  thousands,  and  hundreds  of  thousands  of  them 
are  constantly  in  circulation,  there  is  not  a  dispute  about  them  in  one 
case  out  of  a  million. 

According  to  these  rules,  it  can  not  be  denied  that,  if  the  United 
States  accepted  the  bills  now  in  suit  by  an  officer  who,  at  the  time  he 
did  so,  was  acting  within  the  scope  of  his  legal  authority,  such  accept 
ance  was  a  contract  by  the  Government  to  pay  the  bills  to  the  holder, 
at  maturity,  without  delay  or  defalcation.  If  the  paper,  after  accept 
ance,  and  before  maturity,  was  taken  by  a  bona-fide  holder  for  a  valu 
able  consideration,  the  contract  was  absolute  and  indefeasible.  If  the 
holders  had  such  notice  as  took  away  from  their  purchase  the  quality 
of  good  faith,  then  they  have  it  subject  to  all  the  equities  existing  be 
tween  the  original  parties.  But,  in  either  case,  or  in  any  case,  the 
acceptance  itself  raises  a  presumption  that  it  was  given  for  a  good  con 
sideration  ;  that  the  consideration  has  not  failed,  and  that  the  accept 
ors  had  in  their  hands,  at  the  maturity  of  the  bills,  funds  of  the 
drawees  sufficient  to  pay  it.  In  favor  of  a  holder,  without  notice,  this 
presumption  is  conclusive  ;  in  favor  of  a  holder,  with  notice,  it  is  still 
strong  and  powerful,  so  that  it  can  be  repelled  only  by  clear  and  cogent 
proof  that  the  fact  is  otherwise.  The  acceptor  of  a  bill  is  bound  like 
the  maker  of  a  promissory  note,  and  neither  of  them  can  be  relieved 
from  the  legal  liability,  except  upon  grounds  which  would  justify  a 
chancellor  in  decreeing  the  cancellation  of  a  bond. 

We  can  not  argue  the  question  whether  these  are  bills  of  exchange 
or  not.  It  is  denied  on  the  authority  of  the  Bank  of  the  United  States 
vs.  United  States  (2  Howard,  711).  It  being  decided,  in  15  Peters, 
that  a  paper  exactly  like  this  was  a  bill  of  exchange,  it  is  certainly  not 
a  matter  of  much  consequence  that  the  court  has  determined,  in 
another  case,  that  another  paper,  of  a  different  form,  is  not  a  bill  of 
exchange. 

There  are,  therefore — there  can  be — only  three  questions  in  this 
cause  : 

1.  Did  the  United  States  accept  these  bills  ? 

2.  Are  the  claimants  holders  of  them  in  good  faith  ? 

3.  Have  the  United  States  shown  any  equitable  defense  ? 
Whether  the  United  States  accepted  the  paper,  depends  upon  the 

power  of  the  Secretary  of  War  to  accept  it  for  them,  and  on  their  be 
half.  If  he  had  no  authority,  the  Government  is  not  a  party  to  the 
bills  ;  the  acceptances  are  not  evidence  of  any  legal  liability  ;  they  are 
mere  nullities,  and  no  negotiation  of  them,  whether  with  or  without 
notice,  could  give  them  any  validity  whatever,  as  against  the  United 
States. 

But  what  kind  of  authority  must  we  show  ?    Certainly  not  express 


472  FORENSIC. 

and  special  authority  to  accept  these  yery  bills  nominatim.  It  is 
enough,  if  it  appear  to  your  satisfaction,  that  the  Secretary  had  a  gen 
eral  authority,  which  comprehended  an  act  like  this  within  its  limits. 

This  proposition  is  so  plain  that  I  would  waste  no  time  upon  it,  if 
its  importance  had  not  been  magnified  by  the  court  below  and  by  the 
counsel  on  the  other  side.  They  make  it  the  turning-point  of  the 
case.  Without  denying,  in  direct  and  explicit  terms,  that  a  secretary 
has  authority  to  accept  the  bill  of  a  contractor  for  army  supplies,  they 
insist  that,  under  the  circumstances  of  this  particular  case,  Mr.  Floyd 
had  no  power  to  accept  the 'bills  of  Eussell,  Majors,  and  Waddell, 
which  are  now  in  suit,  and  therefore  these  acceptances  are  null  and 
void.  In  other  words,  they  hold  that  the  legal  validity  of  any  official 
act  depends,  not  on  the  authority  of  the  officer  who  did  it,  but  upon 
the  propriety  of  its  exercise,  in  the  case  under  consideration.  Accord 
ing  to  this  view,  any  contract  of  the  Government,  though  made  by  an 
officer  having  full  authority,  may  be  set  aside,  if  his  successor  shall  be 
of  opinion  that  it  ought  not  to  have  been  made  at  that  time,  upon 
that  occasion,  or  with  that  person.  Nay,  he  may  do  more  :  he  may 
declare  it  null  and  void  a~b  initio,  at  whatever  expense  of  loss  or  injury 
to  the  other  contracting  party,  or  to  third  persons  who  have,  in  good 
faith,  acquired  an  interest  in  it. 

We  maintain  that  the  Secretary  had  authority  to  do  an  act  like  this 
upon  which  we  base  our  claim  ;  that  this  act  is  valid  and  binding,  the 
act  of  the  Secretary  being  the  act  of  the  Government ;  and  it  is  no 
matter  whether  he  exercised  the  power  well  or  ill,  properly  or  improp 
erly,  lawfully  or  unlawfully.  We  deny  that  the  power  was  abused  in 
this  case ;  but  if  it  was,  then  the  Government  which  gave  him  the 
power  must  suffer  for  his  misconduct. 

Inasmuch  as  the  defense  seems  to  rest  entirely  upon  this  point,  I 
may  be  allowed  to  pursue  the  subject  somewhat  further  than  might 
otherwise  seem  to  be  necessary. 

The  rule,  as  you  know  very  well,  is  laid  down  in  all  the  books,  and 
in  all  the  adjudicated  cases,  and  always  in  the  same  form  of  words, 
that  a  principal  is  bound  by  the  acts  of  his  agent  within  the  general 
scope  of  his  authority.  Whether  he  has  been  true  or  not  to  the  inter 
ests  of  his  principal  is  a  question  exclusively  between  themselves.  So 
it  is,  and  must  be,  with  respect  to  those  public  agents  who  derive  their 
authority  from  the  law.  If  you  bestow  upon  any  person  power  to  do 
a  thing,  and  then  make  a  law  restraining  him  in  the  exercise  of  that 
power,  and  he  breaks  through  the  restraining  law  without  transcend 
ing  the  limits  of  his  authority,  his  act  is  as  valid  as  if  done  in  the  prop 
er  exercise  of  his  authority.  In  short,  it  is  not  sufficient  to  invali 
date  any  official  act  that  it  was  an  abuse  of  power.  To  make  it  void,  it 
must  be  shown  to  be — ultra  vires — a  usurpation,  or  an  attempt  to 
usurp  a  power  which  did  not  belong  to  him  at  all.  The  Court  of 


FORENSIC.  473 

Claims  had  authority  to  decide  all  cases  of  the  class  to  which  this  one 
belonged ;  but  it  was  wholly  unlawful  and  improper  for  them  to  de 
termine  this  case,  as  they  did,  in  the  teeth  of  the  evidence  ;  neverthe 
less,  we  can  not  for  that  reason  show  their  decree  to  be  void.  Many  a 
judge,  and  many  an  executive  officer,  has  done  acts  for  which  he 
ought  to  be  impeached,  or  otherwise  punished,  as  a  criminal ;  but 
those  acts,  which  were  criminal  in  him,  were  nevertheless  binding 
upon  the  public,  and  the  parties  interested  in  their  validity. 

A  cashier  of  a  bank  has,  and  must  necessarily  have,  the  power  to 
bind  the  corporation  by  making  it  a  party  to  negotiable  paper.  But 
suppose  a  provision  in  the  charter  and  by-laws  forbids  any  officer  of 
the  bank  to  accept  a  bill  or  draft,  payable  in  the  future,  unless  the 
drawer,  at  the  date  of  the  acceptance,  had  cash  funds  in  the  bank  suf 
ficient  to  meet  it ;  and  the  cashier,  overlooking  or  disregarding  that 
prohibition,  accepts  such  a  bill  from  a  drawer  who  has  no  money,  but 
who  gives  collateral  security  sufficient,  in  the  opinion  of  the  cashier,  to 
make  the  bank  safe.  The  bill  so  accepted  goes  into  circulation,  and 
at  maturity  it  comes  back  to  the  counter  of  the  bank  in  the  hands  of 
a  bona-fide  holder,  with  a  demand  for  payment.  Can  the  bank  set  up 
the  illegal  acts  of  its  officer,  which  are  its  own  acts,  and  declare  the 
paper  to  be  void  on  that  account  ?  No,  certainly.  The  holder  of  the 
bill  must  be  paid  ;  and  if  the  bank  loses  by  the  transaction,  its  remedy 
is  against  the  officer  who  abused  his  trust. 

You  have  applied  this  principle,  with  inflexible  severity,  to  acts  done 
by  the  officers  of  public  as  well  as  private  corporations.  The  case 
which  I  thought  the  hardest  at  the  time  was  that  of  Curtis  vs.  The 
County  of  Butler.  That  was  a  suit  upon  county  bonds  issued  by  the 
commissioners  to  a  railroad  company.  After  a  close  and  careful  ex 
amination,  you  held  that  the  act  of  the  Legislature  did  give  to  the 
commissioners  power  to  make  and  issue  negotiable  bonds,  with  cou 
pons  attached  for  the  interest.  But  the  commissioners  grossly  violated 
the  law  which  should  have  regulated  them  in  the  performance  of  their 
duty.  They  handed  over  the  bonds  to  a  bogus  railroad  company 
without  receiving  a  cent  of  consideration,  and  the  people  of  the  coun 
ty  were  most  inhumanly  swindled — saddled  with  a  debt  which  it  then 
seemed  impossible  for  them  to  pay  without  a  tax  amounting  almost  to 
confiscation  of  their  property.  But  there  was  no  relief.  What  they 
complained  of  was  the  unlawful  exercise,  by  their  own  officers,  of  a 
power  which  they  themselves  had  bestowed  upon  them.  The  thorns 
that  tore  them  grew  upon  the  tree  they  planted. 

In  Woods  vs.  Lawrence  County,  and  Kennett  vs.  Mercer  County, 
you  repeated  the  same  doctrine  in  language  still  stronger.  There  the 
very  same  law  which  authorized  the  commissioners  to  make  the  bonds 
commanded  and  enjoined  them  not  to  exercise  the  authority  until  the 
grand  jury  should  do  certain  things,  which  the  grand  jury  never  did. 


FORENSIC. 

But  you  regarded  this  as  a  mere  circumstance.  You  declared  that  you 
would  presume  all  circumstances  that  were  necessary  to  make  the  ex 
ercise  of  the  power  effectual,  and,  for  the  purpose  of  sustaining  the 
legal  validity  of  negotiable  paper  in  the  hands  of  a  lona-fide  holder, 
you  would  make  that  presumption  conclusive.  The  principle  was  re 
asserted  in  Gelpcke  vs.  City  of  Muscatine,  and  in  another  case  which 
came  up  from  Indiana,  in  which  the  city  of  Madison  was  a  defendant. 

You  have  seen  the  inside  of  many  cases  where  the  contest  was  upon 
the  validity  of  bonds  given  by  municipal  corporations  to  railroad  and 
other  improvement  companies  ;  and  I  think  you  know  that  not  one  in 
twenty  of  those  securities  would  stand  the  test  of  an  inquisition  into 
the  special  circumstances  attending  every  particular  case.  The  appli 
cation  to  them  of  the  doctrine  laid  down  by  the  Court  of  Claims  would 
make  them  nearly  all  as  worthless  as  so  much  waste-paper. 

I  submit,  also,  that  the  rule  contended  for  on  the  other  side  would 
be  very  uncomfortable  to  the  bondholders  of  the  United  States.  Those 
securities  are  now  scattered  all  over  Europe  and  America,  in  the  hands 
of  men  who  know  literally  nothing  about  the  circumstances  under 
which  they  were  issued.  They  were  taken  and  paid  for  upon  an  un 
derstanding,  distinct  and  universal,  that  the  purchaser  was  bound  to 
make  no  inquiry,  except  whether  they  were  made  and  attested  by 
officers  who  had  a  legal  authority  to  pledge  the  faith  of  the  United 
States  for  their  payment.  Are  you  willing  now  to  say  that  their 
value  depends  upon  circumstances  9  Are  they  worthless  and  void  if 
it  can  not  be  shown  that  they  were  issued  at  the  right  time,  to  the 
right  man,  under  the  proper  circumstances,  and  for  a  full  considera 
tion  ?  If  one  of  those  bonds  was  given  in  payment  of  a  pre-existing 
debt,  must  the  holder  be  able  to  show  that  the  debt  was  just  and 
proper  ?  If  they  were  sold  in  the  open  market,  must  he  be  prepared 
to  prove  that  the  agent  was  legally  appointed,  that  he  sold  the  bonds 
for  a  full  price,  and  made  return  to  the  treasury  of  every  cent  he  got  ? 
Perhaps  you  may  think  that  even  by  that  rule  there  are  no  circum 
stances  which  will  justify  the  repudiation  of  the  bonds.  But  can  you 
safely  leave  them  to  the  mercy  of  a  future  administration,  which  may 
have  a  very  different  opinion  about  the  circumstances  in  which  our 
public  debt  had  its  origin  ?  Ten  years  hereafter  you  may  have  a 
Court  of  Claims  just  as  anxious  to  repudiate  the  obligations  of  this 
administration  as  the  present  Court  of  Claims  is  to  repudiate  those  of 
a  former  administration.  Ten  years  hence  you  may  have  an  Attorney- 
General  who  will  be  a  repudiator  as  much  worse  than  the  present  At 
torney-General  as  he  is  worse  than  the  person  who  held  that  office  ten 
years  ago.  Such  an  officer  would  seize  upon  any  circumstance  to  bring 
on  a  conflict  between  the  Government  and  its  creditors. 

Of  course,  there  can  be  nothing  wrong  about  that  portion  of  the 
debt  which  was  created  by  the  War  Department  under  the  adminis- 


FORENSIC.  475 

tration  of  Mr.  Holt,  Mr.  Cameron,  and  Mr.  Stanton.  Their  passion 
ate  devotion  to  the  strict  letter  of  the  law  is  very  well  known.  We 
are,  therefore,  driven  to  one  of  the  other  departments  to  find  even  an 
imaginary  case  to  illustrate  our  principle.  The  Secretary  of  the  In 
terior  is  authorized  by  act  of  Congress  to  issue  certain  bonds  for  the 
use  of  the  Union  Pacific  Railroad  Company ;  but  he  is  commanded 
not  to  do  so  until  a  certain  amount  of  work  has  been  done  upon  the 
road.  Suppose  the  Secretary  of  the  Interior  willfully  or  ignorantly 
issues  the  bonds  prematurely,  and  before  the  required  amount  of  work 
has  been  done.  He  has  exercised  his  power  unlawfully.  But  would 
my  learned  friend  advise  the  Government,  whose  counselor  he  is,  to 
repudiate  those  bonds,  and  declare  them  void,  under  the  circum 
stances  9  No,  he  would  say,  "  Impeach  your  officer,  indict  him,  or 
sue  him  for  the  loss — do  anything  but  cheat  and  ruin  the  innocent 
holder  by  jumping  ' a  circumstance9  upon  him  of  which  he  knew 
nothing  until  after  he  had  parted  with  his  money." 

Your  honors,  as  well  as  the  Attorney-General,  will  recollect  the 
repudiation  of  the  Mississippi  bonds.  The  State  had  given  to  its 
officers  the  power  which  they  exercised  when  they  made  the  bonds, 
and  pledged  the  faith  and  honor  of  the  State  for  the  payment  of  them. 
They  appointed  commissioners  to  negotiate  them,  and  by  those  com 
missioners  they  were  actually  negotiated.  But  they  violated  certain 
laws  which  they  ought  to  have  observed,  and  consequently  the  State 
did  not  receive  the  consideration  which  had  been  contemplated  and 
required.  The  State  repudiated  them,  and  attempted  to  justify  her 
self  ' ( under  the  circumstances."  I  defy  the  Attorney-General  to  show 
any  difference,  in  principle,  between  that  repudiation  and  this.  It  is 
the  same  precisely.  No  doubt,  he  has  read  the  message  of  Governor 
McNutt,  and  he  must  be  conscious  that  any  argument  which  he  is 
able  to  make  for  the  United  States  in  this  case  is  a  mere  reproduction 
of  the  arguments  set  forth  in  that  message  to  vindicate  the  Mississippi 
fraud.  And  he  must  know  that  we  are  standing  upon  the  very  ground 
which  the  whole  world  took  when  the  thunders  of  its  condemnation 
blasted  the  character  of  that  State  forever,  and  left  it  to  stand  through 
all  time  a  scorched  and  blackened  monument  of  shame.  The  judicial 
authorities  of  Mississippi  herself — the  Supreme  Court  of  that  State, 
whose  venerable  chief-justice  is  now  seated  in  your  presence — decided 
that  this  attempt  to  get  rid  of  the  bonds  by  pleading  "  circumstances  " 
was  a  mere  swindle.  But  Governor  McNutt  had  one  signal  advan 
tage  over  our  learned  opponents  in  this  case.  Some  of  the  holders  of 
the  Mississippi  bonds  were  Jews,  and  the  Governor  took  high  religious 
grounds  against  them.  He  insisted  that  no  sympathy  was  due  them, 
even  if  they  were  betrayed  and  plundered,  because  they  had  the  blood 
of  Judas  and  of  Shylock  in  their  veins.  On  theological,  if  not  on 
legal  grounds,  he  had  them  tight  enough.  But  for  aught  that  appears 


476  FORENSIC. 

in  this  case,  Mr.  Peirce,  and  Governor  Morgan,  and  the  sempstresses, 
and  the  widows,  and  the  washerwomen,  and  the  little  boys  who  deposit 
their  half-dimes  in  the  Dover  Savings  Bank,  may  be  as  good  Christians 
as  those  gentlemen  in  the  War  Department  who  are  trying  to  cheat 
them  out  of  their  earnings. 

But  we  have  a  decision  of  this  court  perfectly  decisive.  The 
United  States  vs.  The  Bank  of  Metropolis  is  this  case  in  every  point 
and  circumstance.  The  form  of  the  paper  there  was  the  same  as  this  ; 
the  relation  of  the  drawer  to  the  Government  was  the  same  ;  the  power 
and  position  of  the  officer  who  accepted  the  bill  was  the  same ;  and 
every  circumstance  alleged  in  this  case,  whether  truly  or  falsely,  was 
actually  present  there.  Porter  was  a  contractor ;  he  drew  upon  the 
Post-Office  Department,  which  had  the  supervision  of  his  accounts ; 
his  bill  was  accepted  to  accommodate  him  and  enable  him  to  perform 
his  contract,  though  at  the  date  of  the  acceptance  nothing  was  due 
him.  What  is  worse,  the  earnings  under  his  contract  did  not  cover 
the  bill  while  it  was  running.  This  court  held  the  paper  to  be  a  bill 
of  exchange  ;  that  the  United  States  became  parties  to  it  by  the  ac 
ceptance,  and  were  liable,  like  any  other  acceptor,  and  that,  if  dis 
counted  in  good  faith,  they  were  bound  to  pay  it  to  the  holder  at  ma 
turity,  without  regard  to  the  state  of  the  drawer's  accounts. 

There  is  another  case  also  directly  in  point.  The  United  States 
vs.  Eeeside,  determined  in  the  Circuit  Court,  but  not  reported  except 
in  a  Congressional  document.  In  1835  Mr.  Barry,  the  Postmaster- 
General,  determined  to  have  more  money  for  his  department  than 
Congress  was  willing  to  appropriate.  To  make  a  raise  he  resorted  to 
a  system  of  "kite-flying"  with  General  Reeside,  who  was  one  of  his 
principal  contractors.  At  his  request,  Reeside  drew  a  long  series  of 
bills,  precisely  in  the  form  of  these  bills  now  before  you,  which  Mr. 
Barry  accepted  and  put  into  the  hands  of  his  agents,  who  took  them 
to  Philadelphia  and  New  York,  where  they  were  sold  for  whatever 
they  would  fetch.  The  whole  transaction  was  fictitious.  The  paper 
was  got  up  for  the  accommodation  of  the  department.  It  was  the 
exercise  of  a  power  which  belonged  to  the  Postmaster-General  as  the 
head  of  a  department,  but  it  was,  no  doubt,  a  flagrant  abuse  of  his 
authority.  When  it  was  discovered,  Mr.  Barry  was  driven  from  office 
and  fled  to  Kentucky,  with  the  wrath  of  the  whole  population  burning 
after  him.  Mr.  Kendall  became  his  successor.  He  repudiated  the 
bills,  not  because  there  was  no  power  to  accept  them  (for  he  himself 
did  the  same  thing),  but  because,  in  his  opinion,  they  ought  not  to 
have  been  accepted  under  the  circumstances.  He  stated  an  account 
between  the  United  States  and  Reeside,  and  brought  him  in  debt 
$32,000.  On  this  balance  a  suit  was  brought  in  the  Circuit  Court  of 
the  United  States  at  Philadelphia,  where  it  was  tried  before  Judge 
Baldwin  in  1841.  In  the  mean  time  Reeside  had  been  compelled,  as 


FORENSIC.  477 

the  drawer  and  indorser  of  the  bills,  to  take  up  a  large  number  of 
them,  and  he  had  them  in  his  hands  at  the  time  of  trial.  He  pro 
duced  them  as  offsets,  and  they  were  allowed,  not  only  to  an  extent 
that  covered  the  claim  against  him,  but  the  jury  found  a  verdict  in 
his  favor  for  $188,000,  which  was  afterward  paid  under  an  act  of  Con 
gress.  Judge  Baldwin  instructed  the  jury  that  these  were  bills  of  ex 
change,  and,  being  accepted  by  the  head  of  the  department  which  had 
the  supervision  of  the  drawer's  account,  they  were  binding  upon  the 
United  States ;  that  the  authority  given  to  the  heads  of  the  several 
departments  ought  always  to  be  exercised  for  the  public  good,  but  if 
it  was  perverted  so  as  to  be  injurious  to  the  United  States,  they  must 
look  to  their  officer  for  redress  ;  they  could  not  indemnify  themselves 
by  making  reprisals  upon  other  parties  who  had  trusted  their  officers 
only  to  the  extent  that  the  United  States  themselves  had  proclaimed 
to  the  world  that  they  might  be  trusted.  This  must  be  the  rule.  If 
it  be  not,  then  this  Government  is  a  mere  machine  to  swindle  the  peo 
ple,  and  all  its  officers,  without  going  outside  of  their  authority,  may 
exercise  it  so  as  to  commit  a  fraud  of  which  the  lowest  confidence- 
man  at  a  mock  auction  would  be  ashamed. 

But,  while  I  contend  for  this  rule,  I  do  not  admit  that  there  was 
anything  wrong  in  the  exercise  of  Mr.  Floyd's  authority.  He  violated 
no  law ;  he  disregarded  no  duty  which  he  owed  to  the  Government. 
They  say  that  the  acceptance  of  these  bills  was  in  conflict  with  the 
acts  of  1823,  1846,  and  1853.  The  slightest  glance  at  these  acts  will 
thoroughly  satisfy  you  that  this  whole  transaction  goes  perfectly  clear 
of  all  collision  with  these  statutes,  or  any  of  them. 

It  is  not  pretended  that  the  acceptances  were  given  for  any  corrupt 
reason,  or  that  there  was  any  fraudulent  collusion  between  him  and 
the  drawer  to  make  the  United  States  pay  more  money  than  they 
ought.  The  Court  of  Claims,  indeed,  has  paraded  in  its  finding  the 
misconduct  of  Eussell  and  Bailey  concerning  certain  bonds  held  in 
trust  for  the  Indians ;  but  that  has  no  connection  whatever  with  these 
acceptances,  with  the  War  Department,  or  with  Floyd,  still  less  with 
the  claimants.  It  took  place  long  after  the  present  holders  of  the  bills 
had  paid  for  them  a  full  price  in  good  faith.  If  the  counsel  of  the 
United  States  had  undertaken  to  make  a  special  answer  to  our  petition, 
setting  forth  their  whole  defense  circumstantially,  and  this  affair  be 
tween  Bailey  and  Russell  had  been  inserted  in  such  an  answer,  there 
is  no  court  on  earth,  having  the  remotest  idea  of  its  duty,  that  would 
not  instantly  have  stricken  it  out  as  a  mere  piece  of  impertinent  scan 
dal.  But  the  judges  of  the  Court  of  Claims  were  so  eager  to  defeat  the 
rights  of  the  claimants,  by  throwing  odium  upon  the  case,  that  they 
reached  out  over  the  case  and.  dragged  this  business  in  by  the  head  and 
shoulders.  If  they  thought  that  by  such  means  they  could  commend 
their  decree  to  your  favor,  or  increase  the  chances  of  its  affirmance, 


478  FORENSIC. 

they  must  have  put  an  exceedingly  low  estimate  upon  your  under 
standing. 

Thus  far  I  have  rather  assumed  the  existence  of  the  power.  We 
were  bound  to  satisfy  you,  not  only  that  it  does  exist,  but  that  this 
act  falls  within  its  limits.  For  we  claim  no  unlimited  authority  oyer 
the  purse  or  the  sword  of  the  nation  for  any  officer  of  this  Govern 
ment.  We  deny  utterly  the  extravagant  doctrine  imputed  to  us,  that 
any  head  of  any  department  may  accept  any  bill  drawn  by  anybody 
for  any  amount,  and  bind  the  United  States  to  the  payment  of  it. 
What,  then,  is  the  limitation  ?  I  do  not  undertake  to  define  the  out 
side  boundaries.  It  is  not  necessary  that  I  should.  But  I  think  I 
can  draw  what  the  land-surveyors  would  call  the  interior  lines.  I  do 
it  thus  :  Whenever  any  subordinate  officer,  agent,  or  contractor  has 
a  running  account  with  the  United  States,  he  may  draw  a  bill  upon 
that  department  of  the  Government  which  has  the  administrative 
supervision  of  his  accounts,  and  when  such  a  bill  is  presented  to  the 
head  of  that  department  it  becomes  his  duty  to  determine  whether  it 
shall  be  accepted  or  refused,  and  his  decision  is  binding.  The  power 
to  supervise  the  accounts,  to  determine  what  shall  be  charged  against 
them,  and  what  not,  and  to  pay  what  is  found  due  upon  them,  implies 
and  includes  within  it  the  right  to  accept  a  bill  drawn  against  that 
account.  To  this  extent  the  power  is  established  by  executive  prac 
tice,  by  legislative  sanction,  and  by  judicial  decision.  Narrower  limits 
than  that  you  can  not  assign  to  it  without  denying  altogether  the  ex 
istence  of  the  power. 

It  has  been  denied,  and  that  denial  is  based  upon  the  fact  that  no 
act  of  Congress,  expressly  and  in  so  many  words,  gives  it  to  the  head 
of  any  of  the  departments.  But  it  is  given  in  a  score  of  statutes,  by 
implication  as  clear  as  any  words  can  make  it.  Where  a  power  is  given 
or  a  duty  enjoined  upon  any  public  officer,  without  prescribing  the 
mode  of  its  execution,  the  choice  of  means  is  left  to  the  officer  himself. 
Certainly  it  can  not  be  said  that  he  usurps  a  power  when  he  uses  only 
those  means  which  are  reasonably  proper  to  accomplish  the  end  of  the 
law.  This,  of  course,  will  not  be  denied.  Are  there  no  functions  as 
signed  to  the  heads  of  the  departments  which  make  the  use  of  negotia 
ble  paper  necessary  to  carry  them  into  effect  ?  Let  us  see. 

The  chief  officers  of  the  departments  are  the  direct  and  immediate 
representatives  of  the  supreme  Executive  Magistrate.  What  he  does 
he  does  by  their  agency,  and  what  they  do  is  deemed  and  taken  to  be 
done  by  him.  All  of  them  have  more  or  less  to  do  with  the  fiscal 
affairs  of  the  nation.  All  of  them  are  engaged,  directly  or  indirectly, 
in  the  collection  and  disbursement  of  the  public  revenue,  which  now 
amounts  to  $500,000,000  per  annum.  Their  financial  operations  ex 
tend  to  every  part  of  the  habitable  globe.  There  is  no  commercial 
port  or  political  metropolis  in  the  world  where  they  have  not  impor- 


FORENSIC.  479 

tant  pecuniary  interests  of  the  United  States  to  take  care  of.  They 
are  engaged  all  the  time  in  adjusting  balances  and  settling  accounts  of 
persons  who  live  at  very  great  distances  from  the  center  of  their  opera 
tions.  They  buy  and  sell,  and  make  all  kinds  of  commodities,  great 
and  small,  provinces  and  pumpkin-seeds.  They  bargain  with  all  grades 
and  ranks  of  persons,  at  home  and  abroad,  from  the  Autocrat  of  all 
the  Russias  down  to  the  menial  that  sweeps  out  the  offices  and  shakes 
the  carpets.  They  perform  all  the  functions  of  merchants,  manufact 
urers,  and  bankers,  and  carry  on  all  other  kinds  of  business  that  can 
be  done  by  money.  And  this  they  do,  not  occasionally  and  in  a  small 
way,  but  constantly,  and  on  a  scale  of  magnificent  grandeur.  How  is 
all  this  multifarious  business  to  be  accomplished  ?  A  method  of  doing 
it  by  bills  of  exchange  was  invented  by  the  Jews  of  Lombardy  in  the 
fourteenth  century,  which,  when  tried,  was  found  to  be  so  safe,  con 
venient,  easy,  and  rapid  that  it  was  immediately  adopted,  not  only  by 
all  the  governments  of  the  civilized  world,  but  by  all  private  persons 
who  had  considerable  sums  of  money  to  handle.  It  was  ascertained 
that  a  given  sum,  lying  perfectly  quiet  in  the  vaults  of  a  bank,  or  the 
coffers  of  a  public  treasury,  would  do  twenty  times  as  much  business 
as  could  be  done  with  the  same  amount  in  the  same  time  on  the  old 
system  of  toting  it  about  from  place  to  place,  and  putting  it  into  the 
manual  possession  of  every  one  who  acquired  a  right  to  it.  It  avoided 
the  dangers  as  well  as  the  delays  of  the  old  system.  The  commerce 
of  the  world,  which  had  previously  toiled  along  slowly,  through  the 
perils  of  the  sea  and  the  perils  of  the  land,  was  set  to  flying  high  above 
all  obstacles  and  all  impediments,  and  the  wings  it  mounted  upon  were 
made  of  these  little  slips  of  paper.  If  that  invention  had  been  pat 
ented,  so  that  the  United  States  could  not  use  it  without  paying  for 
it,  they  could  afford  to  give  twenty-five  per  cent  of  their  income  for 
the  privilege  rather  than  go  back  to  the  cumbrous  system  of  the  Mid 
dle  Ages,  and  encounter  all  the  risks  and  expense  which  that  would 
produce.  But  they  tell  us,  on  the  other  side,  that  the  officers  of  this 
Government,  in  conducting  the  public  business,  shall  not  use  the 
means  which  everybody  else  uses  in  all  similar  business.  This  is  not  less 
absurd  than  it  would  be  to  say  that,  when  the  War  Department  is  re 
quired  by  law  to  move  troops,  provisions,  and  military  stores  from  one 
part  of  the  country  to  another,  over  a  route  where  railroads  and  steam 
boats  have  superseded  all  other  modes  of  conveyance,  railroads  and 
steamboats  shall  not  be  used,  because  there  is  no  act  of  Congress  which 
expressly  authorizes  it. 

.  Nothing  like  this  ever  entered  into  the  minds  of  the  great  men  who 
organized  this  Government  and  settled  its  practice.  In  the  golden  age 
of  the  Republic,  when  its  departments  were  under  the  control  of  men 
who  studiously  abstained  from,  the  use  of  any  power  which  was  in  the 
least  doubtful,  this  authority  was  taken  and  used  without  a  suspicion 


480  FORENSIC. 

that  they  were  guilty  of  usurpation.  All  the  predecessors  of  my  learned 
friend,  in  the  office  of  Attorney- General,  have  taken  it  as  a  postulate, 
reasoning  from  it  and  not  to  it.  Congress  stood  by  for  eighty  years 
and  saw  it  exercised — gave  it  not  only  the  sanction  implied  by  their 
silence,  but  many  times  they  indorsed  it  with  their  express  approval, 
by  making  specific  appropriations  for  the  payment  of  debts  which  had 
been  contracted  in  no  other  way,  and  of  which  there  was  no  other 
proof. 

But,  over  all  and  above  all,  this  court  expressly,  positively,  and  di 
rectly  adjudicated  not  only  that  such  a  power  existed,  but  that  it  was 
practiced  daily  and  inevitably,  and  that  the  United  States  had  a  deeper 
interest  than  anybody  else  in  maintaining  the  rules  which  gave  credit 
and  currency  to  that  kind  of  paper.  I  take  it  for  granted  that  you 
will  Ipok  that  decision  directly  in  the  face,  and  meet  it  with  the  can 
dor  and  the  fairness  which  always  has,  which  does  now,  and  which 
always  will,  characterize  the  judicial  mind  of  a  great  nation  like  this. 
It  is  utterly  impossible  to  deduce  from  it  any  other  rule  than  this  : 
That  where  a  contractor  under  the  United  States  draws  a  bill  upon 
that  department  of  the  Government  which  has  the  administrative  super 
vision  of  his  accounts,  and  the  bill  is  accepted  by  the  head  of  the  de 
partment,  the  United  States  become  thereby  bound  to  pay  it,  at  matu 
rity,  just  as  a  private  party  would  be  bound  to  pay  a  bill  accepted  by 
himself  or  by  Ms  authorized  agent. 

There  are  only  two  ways  in  which  you  can  treat  that  case.  One  is 
to  make  it  decisive  of  the  point  under  consideration.  The  other  is  to 
overthrow  it  and  sweep  it  out  of  your  path,  because  it  stands  in  the 
way  of  your  inclination  to  repudiate  this  debt.  The  latter  course  is 
one  which  you  will  be  prevented  from  taking  by  certain  considerations 
which  lie  outside  of  this  cause  and  outside  of  this  subject,  vast  as  it  is. 
They  concern  the  stability  of  the  law  itself,  and  the  confidence  which 
is  and  ought  to  be  reposed  in  this  court  as  the  organ  and  expounder 
of  the  law.  If  you  pay  no  respect  to  the  decisions  of  your  predeces 
sors,  those  who  come  after  you  will  pay  no  respect  to  yours,  and  then 
we  shall  have  no  law,  or  as  good  as  none,  for  it  will  change  every  time 
it  passes  through  the  courts — depending  upon  the  temper  and  the 
caprice  of  the  judges.  Those  sacred  rules  of  property  which  ought  to 
be  as  firm  as  the  foundations  of  the  everlasting  hills,  will  become  as 
unstable  as  water.  The  law  will  be  anything  and  everything,  and 
nothing  at  all,  according  to  the  revolution  and  turn  of  time — the  jus 
ragum  aut  inconditum,  which  all  men  allow  to  be  the  most  intolerable 
scourge  that  ever  afflicted  any  people.  That  is  what  Jeremy  Bentham 
calls  "  dog  law,"  because  the  subject  of  it  can  never  know  what  it  is, 
until  he  feels  the  club  of  his  master  upon  his  head  to  punish  him  for 
some  unconscious  violation  of  it. 

If  you  could  believe  that  the  case  I  refer  to  was  decided  errone- 


FORENSIC.  481 

ously — that  the  case  was  wrong  upon  original  principles — yet,  when 
you  reflect  that  it  was  founded  upon  a  daily  and  inevitable  practice 
then  fifty  years  old ;  that  it  has  been  followed  by  a  similar  practice 
ever  since  ;  that  the  principle  of  it  has  become  woven  into  the  public 
and  private  business  of  the  country  ;  that  rights  have  grown  up  under 
it,  which  it  would  be  utterly  unjust  and  cruel  to  extirpate  now,  you 
would  sustain  it,  if  there  was  no  other  way,  upon  the  principle  that 
communis  error  facit  jus.  For  error  itself  ceases  to  be  erroneous, 
after  it  has  been  practiced  for  a  long  time  with  the  sanction  of  the 
public  authorities,  and  all  the  people  have  learned  to  adjust  their  busi 
ness  to  it. 

If  you  reverse  that  judgment,  what  are  you  to  say  about  it  ? 
You  tell  the  world  that  it  has  stood  for  twenty-five  years  like  an  open 
man-trap  in  the  public  highway,  baited  with  Government  paper  ;  at 
last  it  has  become  full  of  innocent  victims  against  whom  the  War  De 
partment  happens  to  have  a  grudge,  and  it  may  be  sprung  upon  them 
to  their  ruin  and  destruction.  The  decision  that  you  substitute  in  the 
place  of  it  will  be  another  trap,  baited  in  the  same  way,  until  some 
other  obnoxious  individual  happens  to  put  his  foot  into  it,  and  he  will 
suffer  as  these  men,  women,  and  children  are  expected  to  suffer  now. 
This  disregard  of  precedent  will,  of  course,  extend  to  other  cases 
upon  other  subjects,  and  thus  your  whole  system  of  jurisprudence,, 
instead  of  being  what  it  ought  to  be — a  protection  to  the  rights  of 
men — will  be  a  mere  delusion  and  a  snare  in  which  nobody  can  have 
any  confidence. 

Every  judge  who  sat  upon  the  bench  when  that  decision  was  made 
has  gone  to  his  reward.  They  are  all  dead.  Has  the  law,  as  they 
settled  it,  died  with  them  ?  And  are  the  decisions  that  you  make  to 
be  buried  in  your  graves  also  ? 

I  do  not  say  this  because  I  have  allowed  myself  for  one  moment  to 
believe  that  you  are  capable  of  pronouncing  a  judgment  which  will 
punish  these  claimants  by  defrauding  them  for  the  sin  of  relying  upon 
a  solemn  decision  of  your  predecessors.  This  court  has  gone  further 
than  any  court  in  the  world  in  support  of  the  principle  of  stare  decisis 
as  the  great  sheet-anchor  of  the  law.  You  have  held  that,  where  a 
contract  has  been  made,  which  was  valid  according  to  the  law  as  ex 
pounded  by  the  judicial  authorities  at  the  time  it  was  made,  it  can 
not  be  set  aside,  or  its  obligations  impaired,  by  any  subsequent  change 
of  the  judicial  mind.  We  demand  the  protection  of  that  principle, 
and  we  expect  to  receive  it. 

I  do  not  deny  that  the  United  States  may,  like  an  individual  ac 
ceptor,  make  an  equitable  defense,  unless,  indeed,  the  bill  has  passed 
beyond  the  reach  of  equity,  by  going  into  the  hands  of  a  bona-fide 
holder  who  has  paid  for  it.  This  brings  me  to  the  question  of  notice, 
of  which  I  propose  to  say  very  little. 

31 


482  FORENSIC. 

It  is  admitted  that  Mr.  Morgan  and  the  two  banks  are  holders  in 
good  faith  ;  but  it  is  asserted  that  Mr.  Peirce  had  notice.  The  alleged 
notice  consisted  in  a  declaration  made  to  him  by  Mr.  Floyd,  in  which 
he  assured  him  that  he  had  accepted  these  bills,  that  he  had  authority 
to  do  so,  that  there  was  consideration  for  them,  and  that  Mr.  Peirce 
would  be  perfectly  safe  in  taking  them.  He  proceeded  to  show 
that  the  authority  had  been  exercised  prudently  and  cautiously,  the 
acceptance  being  given  only  for  about  forty  or  fifty  per  cent  of  the 
money  which  would  be  due  to  the  drawers  when  they  delivered  the 
goods  then  actually  in  transitu.  He  concluded  by  pronouncing  these 
the  best  public  securities  extant,  because  the  money  to  pay  them  was 
already  appropriated  by  Congress.  Mr.  Peirce,  understanding  this 
just  as  any  other  sensible  man  must  have  understood  it,  took  the 
bills,  paying  for  them  an  outside  price.  He  never  dreamed  that  any 
tribunal  in  the  world,  judicial  or  quasi- judicial,  would  require  him  to 
understand  the  words  that  he  had  heard  in  a  sense  directly  opposite  to 
their  natural  meaning.  But  the  solemn  assurance  that  they  were  all 
right  was  ruled  by  the  court  below  to  be  notice  that  they  were  all 
wrong  ! 

We  have  no  right  to  anticipate  that  the  counsel  for  the  Govern 
ment  will  attempt  to  sustain  a  ruling  like  this.  But  the  effect  of  it 
practically  was,  not  only  to  permit,  but  to  invite,  the  War  Department 
to  exhibit  the  state  of  the  drawers'  accounts. 

If  the  earnings  of  the  drawers  upon  their  contract,  while  the  bills 
were  running  to  maturity,  were  sufficient  to  cover  the  amount  of  the 
acceptances,  payment  to  the  holders  can  not  be  honestly  refused.  To 
this  part  of  the  case  I  would  ask  your  careful  attention,  because  here 
you  must  mark  out  the  moral  ground  which  these  parties  respectively 
occupy.  Where  the  holder  and  the  acceptor  of  a  bill  are  placed  in 
such  a  situation  that  one  or  the  other  must  lose  the  sum  in  controversy, 
neither  of  them  can  be  blamed  for  making  a  fair  struggle  to  throw  the 
loss  upon  the  other.  But  where  the  acceptor  has  the  money  of  the 
drawer  in  his  hands,  or  security  for  it,  and  attempts  to  shuffle  out  of 
his  liability  by  concealing  the  truth,  such  a  man  is  guilty  of  loathsome 
dishonesty. 

I  need  not  repeat  what  I  have  said  already,  that  the  acceptance 
does  ipso  facto  raise  a  presumption  that  the  acceptor  had  funds  appli 
cable  to  the  payment  of  the  bill,  and  which,  in  conscience  and  in  honor, 
he  ought  to  apply  to  it.  Have  the  United  States  repelled  that  pre 
sumption  ?  No  !  they  have  strengthened  it  in  every  possible  way. 
They  have  piled  up  the  evidence  against  themselves  until  they  have 
made  it  as  strong  and  as  solid  as  a  wall  of  adamant. 

In  the  first  place,  they  show  that  the  drawers  were  contractors,  and 
they  do  not  couple  that  fact  with  any  evidence  showing  or  tending  to 
show  that  the  contract  was  ever  violated  in  any  particular,  No  requi- 


FORENSIC.  483 

sition  was  ever  made  upon  Kussell,  Majors,  and  Waddell  which  was  not 
fully  complied  with.  The  army  in  Utah  did  not  perish  for  lack  of 
supplies,  and  not  an  ounce  of  provisions,  not  a  shred  of  clothing,  was 
ever  furnished  by  anybody  but  these  contractors.  There  was  a  run 
ning  account  between  them  and  the  United  States,  of  which  the  War 
Department  had  supervision,  and  there  is  no  scintilla  of  proof  that 
the  account  was  overdrawn,  as  it  stood  when  these  bills  became  due. 
Moreover,  they  prove  that  Congress  recognized  the  existence  of  this 
very  debt  by  making  a  specific  appropriation  for  its  payment.  Of  the 
six  hundred  and  seventy-three  thousand  dollars  placed  at  the  disposal 
of  the  War  Department  for  that  purpose  in  July,  1860,  it  does  not 
appear  that  one  cent  was  ever  applied  as  it  ought  to  have  been.  There 
it  was  then,  and  there  it  is  now,  unless  it  has  been  unlawfully  and 
dishonestly  perverted  to  some  other  purpose. 

If  these  drawers  were  in  debt  to  the  United  States,  after  being 
charged  with  the  accepted  bills,  it  was  plainly  and  obviously  the  duty 
of  the  War  Department  to  have  an  account  stated,  and  take  legal 
measures  to  collect  the  balance.  But  no  settlement  was  ever  made,  no 
claim  against  them  was  ever  asserted,  no  suit  was  ever  brought.  If 
the  successors  of  Floyd  knew  Eussell,  Majors,  and  Waddell  to  be  not 
only  defaulters,  but  fraudulent  contractors,  who  had  falsely  got  their 
overdrafts  accepted,  then  the  omission  to  vindicate  the  rights  of  the 
Government  was  a  gross  and  shameful  crime,  compared  to  which  the 
worst  thing  charged  against  Floyd  was  an  act  of  white-robed  inno 
cence.  But  you  are  not  asked  to  make  that  imputation.  They  did 
not  connive  with  defaulters  to  shelter  them  from  justice,  and  defraud 
the  United  States.  They  understood  very  well  that  the  United  States 
had  no  claim  against  them,  and  could  have  none  in  any  event.  But 
they  had  made  up  their  minds  to  cheat  the  holders  of  this  paper  out 
of  their  just  rights,  and  therefore  they  determined  to  smother  up  the 
truth. 

If  the  refusal  to  settle  an  account  could  be  explained  in  a  way 
which  would  make  it  at  once  consistent  with  fidelity  to  the  Govern 
ment  and  justice  to  the  claimants,  there  is  another  thing  which  admits 
of  no  possible  excuse.  Why  did  they  not  produce  their  books  and 
records,  after  the  court  below  declared  that  the  case  was  open  to  all 
equities  ?  They  surely  knew  that  there  could  be  no  equity  in  their 
favor  as  long  as  they  failed  to  prove  the  want  of  funds  in  their  hands. 
But  they  obstinately  refused  to  produce  the  requisitions,  the  vouchers, 
the  credits,  or  the  charges.  They  withheld  them  in  wanton  disregard 
of  what  they  owed  to  the  administration  of  justice.  The  presumption 
in  odium  spoliatoris  applies  to  an  officer  as  it  does  to  anybody  else  ;  at 
all  events,  no  party,  public  or  private,  can  withhold  material  evidence, 
which  is  in  his  own  exclusive  possession,  and  afterward  be  permitted 
to  say  that  it  would  have  made  in  his  favor  if  he  had  produced  it. 


484  FORENSIC. 

Do  not  allow  yourselves  to  be  imposed  upon  by  that  paragraph,  in 
the  second  finding  which  says  that  there  was  due  to  the  drawers,  at 
each  of  the  several  times  when  the  bills  of  Morgan  and  the  two  banks 
were  accepted,  $17,884-84,  and  the  same  sum  to  a  fraction  on  the  18th 
of  May,  1860,  nearly  a  year  afterward.  If  this  proves  anything,  it 
shows  that  the  contractors  always  drew  for  exactly  $17,884-84  less 
than  their  earnings.  The  court  did  not  say  how  this  singular  fact 
occurred,  nor  why  the  balance  was  at  all  times  kept  back  to  that 
specific  point  by  a  party  whose  credits  were  accumulating  at  the  rate 
of  hundreds  of  thousands  every  month.  If  it  had  said  that  the  drafts 
were  not  charged  against  the  account,  and  still  the  balance  in  their 
favor  was  only  $17,884-84,  we  would  have  been  bound  to  take  for  true 
what  we  could  not  believe,  namely,  that  nothing  was  earned  under  the 
contract  during  all  that  time.  But  the  court  could  not  say  that,  for 
the  judges  knew  it  was  not  only  unsupported  by  proof,  but  contrary 
to  all  the  known  facts  of  the  case,  and  opposed  to  the  direct  evidence 
which  came  from  the  mouth  of  a  witness  called  by  the  Government 
itself. 

There  is  our  case.  Bills  of  exchange  drawn  by  contractors  against 
an  account  with  the  United  States,  and  accepted  by  the  head  of  the 
proper  department,  in  pursuance  of  legal  authority,  and  a  practice  as 
old  as  the  Government  itself,  passed  to  the  claimants,  who  took  them 
in  perfect  good  faith  at  the  highest  rates,  and  payment  refused,  not 
because  the  drawers  had  no  funds  in  the  hands  of  the  acceptors,  but 
because  the  War  Department  took  a  fancy  that  it  would  be  pleasant 
and  profitable,  and  perhaps  popular,  to  withhold  from  the  claimants 
the  money  which  was  due  to  them  by  every  principle  of  justice  and 
law.  Their  defense  is  that  the  claimants  ought  to  suffer  because  the 
officer  was  guilty  of  some  pretended  irregularity  in  the  exercise  of  his 
power  to  bind  the  United  States.  And  they  think  they  can  cover  the 
shameful  nakedness  of  this  fraud  with  such  a  paltry  fig-leaf  as  that ! 

We  have  no  objection  that  you  shall  look  to  the  public  interest,  if 
you  will  take  a  broad  view  of  it.  If  the  nation  owed  no  debt  except 
this,  and  expected  never  to  contract  another,  then  she  would  have  no 
practical  use  for  her  character,  and  all  that  could  be  filched  from  these 
claimants  would  be  so  much  clear  gain.  But  we  are  not  in  that  situa 
tion.  We  owe  some  thousands  of  millions,  and  our  securities  are  sell 
ing  in  the  markets  of  the  world  for  about  seventy-five  cents  on  the 
dollar.  That  they  sell  for  that  much  is  evidence  that  some  persons 
believe  in  our  honesty  ;  that  our  six-per-cents  do  not  sell  for  one  hun 
dred  and  twenty-five  or  thirty,  while  English  three-per-cents  bring 
ninety- five,  proves  that  in  some  quarters  we  are  seriously  doubted.  We 
have  some  credit  to  gain  as  well  as  some  to  lose.  If  you  could  do  any 
thing  which  would  at  once  inspire  universal  faith  in  the  commercial 
integrity  of  this  nation  for  the  present  and  the  future,  you  would  add  a 


FORENSIC.  485 

thousand  millions  to  the  available  wealth  of  the  country,  and  give  in 
calculable  strength  to  the  Government  at  home  and  abroad.  If  you 
would  at  once  destroy  what  confidence  does  exist,  you  would  bring 
calamities  upon  us,  to  which  war,  pestilence,  and  famine  would  be 
visitations  of  mercy. 

It  is  a  mistake,  which  you  certainly  are  in  no  danger  of  making, 
to  suppose  that  this  thing,  which  we  call  the  national  honor,  is  merely 
set  up  to  glitter  in  the  eyes  of  the  world ;  to  inflame  the  pride  of  our 
own  people,  and  excite  the  admiration  of  others.  It  has  a  practical 
value  which  might  be  counted  in  dollars  and  cents,  if  the  sum  were 
not  too  large  for  human  arithmetic.  The  nation  that  preserves  it  un 
tarnished  can,  without  money,  do  all  that  others  can  do  with  it.  She 
need  not  hoard  her  treasures.  When  the  emergency  requires  it,  she 
has  but  to  say  the  word,  and  capitalists  come  from  all  the  ends  of  the 
earth  to  pour  out  uncounted  millions  at  her  feet.  Junius  said  :  "Pri 
vate  credit  is  wealth,  public  honor  is  security  ;  like  the  feather  on  the 
wing  of  your  eagle,  it  not  only  decorates  the  royal  bird,  but  it  sustains 
him  in  his  flight ;  strip  him  of  his  plumage,  and  you  fix  him  to  the 
earth."  * 

The  advantage  of  simple  good  faith  is  strikingly  shown  in  the  his 
tory  of  British  India.  A  handful  of  adventurers,  organized  as  a  trad 
ing  company,  from  a  little  island  in  the  Northern  Ocean,  twenty  thou 
sand  miles  away,  got  a  foothold  on  the  shore,  and  commenced  a  strug 
gle,  at  first  for  existence,  and  then  for  supremacy.  Their  enemies 
were  the  native  princes,  who  were  rich  in  everything  except  a  good 
character.  But  nobody  would  lend  them  a  rupee,  even  on  a  promise 
of  fifty  per  cent  interest,  because  the  chances  were  always  more  than 
even  that  some  excuse  for  non-payment,  like  that  which  is  here  set  up, 
would  be  framed  out  of  the  "circumstances  of  the  case."  Every  man 
that  had  money  buried  it  deep  in  the  earth,  or  walled  it  up  in  the 
solid  masonry  of  his  house,  to  prevent  his  government  from  getting  it 
by  fraud  or  force.  But  it  was  soon  ascertained  that  the  English  were 
in  the  habit  of  keeping  their  contracts.  When  they  made  a  promise, 
it  was  as  certain  to  be  performed  as  the  sun  was  to  rise  and  set  at  the 
appointed  times.  Immediately  the  coin  was  brought  forth  from  its 
hiding-places  and  offered  to  the  English  company  at  any  rate  of  usance 
they  might  be  willing  to  give,  three  or  four  per  cent  being  the  utmost 
that  was  asked.  This  gave  the  company  the  command  of  all  the 
wealth  in  the  country,  and  put  in  its  hands  an  irresistible  power 
which,  in  the  course  of  a  few  years,  made  them  masters  of  all  that 
opulent  region,  with  a  hundred  and  fifty  millions  of  people.  Macau- 
lay,  who  understood  the  subject  thoroughly,  declares  these  vast  results 
to  have  been  produced  more  by  the  mere  fact  that  the  company  never, 
under  any  circumstances,  denied  its  debts,  or  tarnished  its  commercial 
honor,  than  by  all  other  causes  put  together. 


486  FORENSIC. 

Any  state,  community,  or  nation  may  have  such  a  character,  if  it 
chooses  to  deserve  it  by  an  honest  compliance  with  all  its  obligations. 
But  that  is  the  sole  condition  upon  which  it  can  be  got  or  kept.  Mr. 
Webster  said  of  Alexander  Hamilton  that  "he  smote  the  rock  of 
the  national  resources  and  an  abundant  stream  of  revenue  gushed 
forth ;  he  touched  the  dead  corpse  of  public  credit  and  it  sprang  to 
its  feet."  How  ?  By  what  magic  was  a  modern  statesman  able,  even 
in  a  figurative  sense,  to  reproduce  the  miracles  of  Moses  and  Elijah  ? 
Simply  by  giving  to  the  world  a  practical  assurance  that  his  Govern 
ment  was  utterly  incapable  of  descending  to  the  meanness  which 
would  trifle  with  a  legal  contract,  or  deny  the  payment  of  an  honest 
debt.  Without  that  the  fountain  in  the  rock  would  have  dried  up  in 
an  hour ;  without  that  the  reanimated  corpse  would  have  sunk  back 
again  into  the  arms  of  death,  as  cold  and  as  stiff  as  ever.  Kemember, 
it  is  not  enough  that  you  pay  one  favored  class  of  your  creditors — 
those  who  are  favored  to-day  may  be  the  victims  of  to-morrow.  To 
make  any  of  them  sleep  the  sound  sleep  of  men  who  feel  secure  in 
their  rights,  you  must  show  that  you  are  animated  by  that  high  sense 
of  justice,  which  consecrates  all  legal  obligations  alike. 

I  do  not  say  that  your  decision  in  this  case  will  immediately  pro 
duce  a  total  collapse  in  your  whole  financial  system.  Its  effect  will 
not  be  appreciated  at  first.  But  when  it  comes  to  be  considered,  and 
understood,  and  adopted  as  a  precedent  in  other  cases,  it  can  not  but 
have  a  most  pernicious  effect  on  the  public  credit.  It  is  a  stab  at  the 
national  honor.  Like  Mercutio's  wound,  it  is  not  as  wide  as  a  church- 
door  nor  as  deep  as  a  well,  but  it  will  do  your  business  for  you  in  the 
course  of  time.  A  little  leaven  leaveneth  the  whole  lump,  and  it  can 
not  be  long  before  the  principle  of  such  a  decision  will  pervade  the 
whole  mass  of  the  public  indebtedness.  Nemo  repente  fuit  turpissi- 
mus ;  no  man  ever  became  thoroughly  wicked  all  at  once,  and  no 
nation  ever  went  down  to  the  bottomless  pit  of  repudiation  at  a  single 
plunge.  The  " descensus  Averni"  is  rather  steep  to  be  sure,  and  it 
gets  steeper  and  steeper  the  farther  you  go  ;  but  it  is  not  quite  per 
pendicular.  This  is  a  start  in  that  direction,  and  all  the  more  dan 
gerous  because  it  may  excite  but  little  apprehension  at  first.  If  the 
whole  people  should  be  shocked  by  it,  the  recoil  alone  might  save  us 
from  destruction.  But  those  things  which  are  most  terrible  in  ma 
turity  are  always  least  alarming  in  their  infancy.  A  rat-hole  in  a 
Dutch  dike  is  not  a  formidable  affair  at  first ;  it  lets  in  very  little 
water  in  comparison  to  the  great  ocean  continually  surging  up  against 
it ;  but  it  washes  wider  and  wider  every  hour,  and,  at  last,  a  mighty 
tide  goes  pouring  through  it — enough  to  drown  whole  cities,  and  cover 
all  the  plains  about  them.  Look  well  to  your  rat-holes,  unless  you 
are  willing  to  be  submerged  ;  beware  how  you  suffer  repudiation  of  a 
small  debt  if  you  wish  the  large  ones  to  be  secure. 


FORENSIC.  487 

You  can  readily  imagine  the  impression  such  a  case  as  this  would 
make'  upon  you  if  you  would  hear  of  it  as  occurring  in  a  foreign  coun 
try.  Suppose  you  would  read  in  some  authentic  publication  that  the 
French  Minister  of  War  had  made  a  large  contract  for  supplies  to  the 
army  in  Algiers.  The  contractor  proceeds  to  perform  his  full  duty, 
and  draws  upon  the  minister  from  time  to  time  for  his  earnings.  The 
minister  accepts  his  bills  cautiously,  and  always  for  less  than  fifty  per 
cent  of  the  money  which  will  be  due  to  the  contractor  when  he  de 
livers  the  goods  then  at  Marseilles,  and  ready  to  be  shipped  across  the 
Mediterranean.  These  accepted  bills  are  offered  to  a  banker,  who  is 
willing  to  take  them  at  their  full  value  as  first-class  commercial  paper  ; 
but,  in  order  to  make  assurance  doubly  sure,  he  calls  on  the  minister 
and  asks  if  they  are  safe.  The  minister  afiirms,  and  affirms  truly, 
that  he  gave  the  acceptances  in  pursuance  of  law,  and  according  to  a 
practice  which  dates  as  far  back  as  the  time  of  the  crusades,  and  sol 
emnly  declares  that  they  will  certainly  be  paid  at  maturity.  The  bills 
are  taken,  paid  for  in  good  faith,  and  kept  until  they  are  due.  But, 
when  payment  is  demanded,  the  holder  finds  the  portfolio  of  the  War 
Office  in  the  hands  of  a  new  minister,  who  sullenly  and  silently  refuses 
to  pay.  No  reason  is  given.  It  does  not  appear  that  the  contractor 
failed  in  his  contract ;  no  assertion  is  made  that  his  earnings  did  not 
equal  the  amount  of  his  drafts.  The  minister  refuses  to  settle  his 
accounts,  and  thus  acknowledges  that  the  balance  is  in  favor  of  the 
drawer.  Payment  seems  to  be  refused  for  no  reason  except  that  the 
new  minister  can  thereby  curry  favor  with  his  master  by  throwing 
additional  odium  upon  his  fallen  predecessor.  The  holder  appeals  to 
the  other  authorities,  from  whom  he  receives  neither  aid  nor  comfort. 
At  length  he  invokes  the  Court  of  Cassation,  the  highest  tribunal  of 
justice  in  the  Empire,  and  that  court,  after  hearing  the  cause  debated, 
holds  that  this  unworthy  trick,  by  which  an  honest  and  confiding 
man  has  been  swindled  out  of  his  fortune,  is  perfectly  consistent  with 
French  ideas  of  public  morality  ;  and  that  whosoever  shall  deal  with 
that  government  must  expect  precisely  that  kind  of  justice,  and  no 
other.  After  seeing  this,  would  you  believe  much  in  the  good  faith 
of  that  nation  ?  If  you  had  any  of  its  securities,  would  not  you  feel 
like  rolling  them  up  and  getting  rid  of  them  as  soon  as  possible  ? 

But  I  have  supposed  an  impossible  case.  No  such  thing  could 
occur  with  any  European  government.  If  it  occurs  here,  we  will 
stand  alone,  a  fixed  image  for  the  scorn  of  the  world  to  point  her 
finger  at.  In  France  they  have  had  six  revolutions  in  eighty  years — 
totally  changing  each  time  not  only  the  rulers  but  the  whole  structure 
of  their  political  system.  No  party,  even  in  the  white  heat  of  its  tri 
umph,  ever  repudiated  the  debts  of  its  predecessors.  In  the  wildest 
frenzy  of  the  first  revolution — when  the  country  was  governed  by  the 
mere  passions  of  the  Jacobin  Club — they  dragged  the  king  to  the  guil- 


488  FORENSIC. 

lotine  and  chopped  his  head  off  for  making  the  debts — that  was  what 
Judge  Baldwin  would  call  "looking  to  their  officers" — but  the  con 
tracts  which  he  made  in  the  name  of  the  nation,  while  his  legal 
authority  lasted,  were  sacredly  kept.  When  the  Bourbons  were  re 
stored,  in  1815,  they  studiously  ignored  the  very  existence  of  Napo 
leon  ;  they  struck  his  name  out  of  the  records  wherever  they  could, 
and  substituted  their  own  in  its  place ;  they  pulled  down  the  monu 
ments  erected  to  honor  him,  and  gave  back  the  fruits  of  his  victories 
to  the  nations  from  whom  he  had  wrested  them ;  they  treated  his 
whole  reign  as  one  continued  rebellion  against  their  just  authority  : 
but  they  acknowledged  the  obligation  of  the  debts  he  contracted,  even 
to  maintain  his  rebellion,  because  he  was  at  the  time  de  facto  chief  of 
the  state.  They  knew  how  unsafe  any  other  action  would  be,  for 
their  creditors  would  look  forward,  if  they  themselves  did  not,  to  the 
time  when  some  new  Napoleon  would  arise,  who  might  treat  their  con 
tracts  as  they  would  treat  those  of  the  first  emperor.  The  public  debt 
of  France  lies  imbedded  beneath  six  layers  of  revolutions,  and  that 
portion  which  lies  the  lowest  is  paid  as  faithfully  as  the  contract  that 
was  made  but  yesterday.  Are  we  to  acknowledge  that  we  can  not  get 
through  the  thin  crust  of  prejudice  created  by  one  change  of  adminis 
tration  ?  If  yes,  what  is  to  become  of  our  creditors  when  the  great 
changes  take  place  which  probably  await  us  in  the  future  ? 

But  you  will  wipe  away  the  stain  which  this  act  of  the  War  De 
partment  has  cast  upon  the  nation,  and  send  her  forward  upon  the 
clear,  bright  line  of  justice  which  stretches  out  straight  before  her. 
So  will  she  have  length  of  days  in  her  right  hand,  and  in  her  left  hand 
riches  and  honor. 


PROVIDENCE  RUBBER  COMPANY  vs.  GOODYEAR'S 
EXECUTOR,  ET  AL. 

MR.  BLACK  said  he  would  confine  himself  entirely  to  what  has  justly 
been  called  the  main  case,  and  be  as  brief  about  that  as  he  possibly 
could. 

At  this  stage  of  the  discussion  it  is  not  necessary  to  make  any 
prefatory  statement  of  the  facts,  except  to  remind  the  court  of  the 
order  and  sequence  in  which  they  occurred. 

Charles  Goodyear  got  his  patent  in  1844.  In  1849  he  surrendered 
it  and  took  a  re-issue.  In  1858,  when  it  was  about  to  expire,  he  made 
application  for  an  extension,  and  succeeded,  as  we  allege,  by  a  fraud. 
In  1859,  or  in  the  early  part  of  1860,  he  died.  In  December,  1860, 
his  personal  representatives  again  surrendered  the  patent,  and  this 
time  they  took  out  two  patents,  instead  of  the  one  which  had  covered 


FORENSIC.  489 

the  invention  before.  It  is  for  infringing  these  two  patents  that  the 
appellants  were  sued. 

The  defense  which  they  set  up  in  the  Circuit  Court  was  somewhat 
multifarious.  That  part  of  it  which  went  most  directly  to  the  merits 
of  the  case  maybe  stated  in  a  breath  :  The  plaintiffs  had  no  valid 
patent,  and  we  had  a  license  from  the  patentee  for  all  acts  that  were 
charged  against  us  in  the  bill  as  unlawful  and  wrong.  The  judge  of 
the  Circuit  Court  overruled  these  defenses,  and  all  the  other  defenses 
that  we  made.  He  declared  that  the  plaintiffs  had  a  patent 'which 
was  good  enough,  and  he  ignored  our  license  altogether.  Thereupon 
the  court  made  a  decree  against  us,  which  would  have  seemed  harsh 
and  excessive  even  if  we  had  been  infringers  in  bad  faith  upon  a  legal 
and  honest  patent.  Its  magnitude  will  be  understood  when  I  tell  you 
one  fact :  In  1858,  when  Goodyear  made  application  for  the  extension 
of  his  patent,  he  swore  to  the  sum  he  had  made  from  it  up  to  that 
time.  For  using  his  invention,  with  half  the  force  of  one  factory  (not 
a  large  one)  at  Providence,  during  a  period  of  two  years,  and  then 
only  at  intervals  few  and  far  between,  this  decree  makes  the  defend 
ants  pay  more  than  twice  as  much  as  Goodyear  swore  he  had  been 
able  to  get  for  the  use  of  that  same  invention  by  all  the  manufact 
urers  in  the  United  States  put  together  in  the  whole  course  of  four 
teen  years. 

One  of  the  decrees  made  by  Lord  Bacon,  when  he  was  Chancellor 
of  England,  was  pronounced  in  the  House  of  Lords  to  be  a  "killing 
decree  "  ;  and  this  is  one  of  the  same  kind.  If  my  learned  friend  (Mr. 
Stoughton)  conies  anywhere  near  the  truth  in  the  statement  he  has 
made  about  the  defendants'  circumstances,  it  not  only  broke  up  their 
business  for  the  time,  but  it  must,  if  executed,  drive  them  out  into 
uttermost  ruin  and  bankruptcy.  It  is  a  killing  decree.  No  wonder 
that  they  are  here  beseeching  you  "to  deliver  them  from  the  body  of 
this  death."  They  have  faith  enough  to  believe  that  you  will  save 
them  alive,  if  you  can  do  so  consistently  with  your  sense  of  justice 
and  your  love  of  law. 

On  some  of  the  points  taken  in  the  Circuit  Court  I  will  be  entirely 
silent,  but  I  will  maintain,  if  I  can,  the  five  propositions  which  I  am 
now  about  to  enumerate. 

First. — The  extension  of  1858  was  procured  by  an  actual  fraud, 
and  is  therefore  absolutely  null  and  void.  If  that  be  true,  the  plaint 
iffs  have  no  patent  now,  and  had  none  at  any  time  since  1858,  when 
their  original  patent  expired. 

Secondly. — The  two  patents  re-issued  on  the  surrender  of  1860  are 
not  for  two  different  inventions,  nor  for  two  separate  and  distinct 
parts  of  one  invention,  but  for  two  halves  of  one  single  invention, 
which  is  an  indivisible  unit,  not  capable  of  being  separated.  The  legal 
consequence  is  that  both  patents  are  void,  or  else  the  two  are  to  be 


490  FORENSIC. 

treated  as  one.     In  the  latter  case  the  admitted  defect  in  one  of  the 
patents  is  fatal  to  both  of  them. 

Thirdly. — Both  of  those  patents  are  void  for  another  reason.  In 
both  of  them  the  claim  is  broader  than  the  invention,  and  in  that  one 
which  was  sustained  by  the  court  the  over-claim  is  more  palpable  than 
in  the  other,  which  the  court  below  adjudged,  and  which  the  counsel 
opposed  to  us  now  admit,  to  be  without  a  pretense  of  validity. 

Fourthly. — We  had  a  license,  plain,  unambiguous,  and  authentic, 
which  gave  us  for  a  good  consideration,  by  apt  words  and  in  proper 
form,  the  authority  of  the  patentee  himself  to  use  his  invention  pre 
cisely  as  we  did  use  it,  and  to  make  the  very  goods  which  we  are  sued 
for  making. 

Fifthly  and  lastly. — The  Master  in  Chancery,  to  whom  the  court 
sent  this  case  to  make  up  an  account  against  us,  based  his  calculation 
of  our  profits  on  a  rule  for  which  we  can  find  no  precedent  in  the 
books,  no  analogy  in  the  law,  no  foundation  in  any  principle  of 
natural  justice.  This  report,  I  am  satisfied,  would,  upon  further  dis 
cussion  and  reflection,  have  been  set  aside  by  the  court  below ;  but  it 
was  not  done,  and  this  court  is  bound  now  and  here  to  do  what  ought 
to  have  been  done  by  the  Circuit  Court  then  and  there. 

If  you  agree  with  us  on  any  one  of  the  four  first  points,  the  plaint 
iffs'  case  must  go  entirely  by  the  board,  and  the  bill  be  dismissed.  If 
you  concur  with  us  only  on  the  last  one,  the  decree  must  be  reversed, 
and  another  substituted  in  its  place,  very  much  less  in  amount. 

It  is  unfortunate  for  us  that  Mr.  Justice  Clifford  decided  this  cause 
against  us  on  the  circuit.  Of  course,  if,  upon  reconsideration,  he 
finds  that  he  fell  into  error,  he  will  hasten  to  correct  it  before  it  pro 
duces  irreparable  mischief.  But  it  is  hard  upon  us  to  have  the  weight 
of  his  judgment  thrown  into  the  scale  against  us  ;  for  we  must  admit 
that,  whenever  our  argument  comes  in  conflict  with  his  opinion,  the 
presumption  is  that  he  is  right  and  we  are  wrong,  unless  we  show  the 
contrary  by  clear  reasoning  or  by  very  decisive  authority. 

I.  So  far  as  the  law  of  our  first  point  is  concerned,  Judge  Clifford 
is  with  us,  as  I  understand  him. 

Mr.  JUSTICE  CLIFFOKP. — You  mean  probably  about  the  question  on 
the  re-issue. 

Mr.  BLACK. — No.  I  refer  to  the  effect  of  the  fraud  by  which  the 
extension  of  1860  was  procured.  The  judge  conceded  as  matter  of  law 
that  we  had  a  right  to  defend  ourselves  against  an  extended  patent, 
void  for  the  kind  of  corruption  imputed  to  this  one,  if  we  could  do  so 
by  satisfactory  proof.  It  may  not  be  expressed  with  his  usual  felicity  . 
of  diction,  or  with  all  the  terseness  which  is  common  to  his  opinions, 
but  it  admits  of  no  other  interpretation. 

Our  proposition,  stated  in  general  terms,  is,  that  any  grant, 
whether  of  land,  money,  or  privileges,  made  by  the  Government  through 


FORENSIC.  491 

a  judicial  or  executive  agent,  is  wholly  void  if  procured  by  trick,  im 
posture,  or  any  species  of  actual  fraud.  Where  the  object  is  to  set 
aside  and  cancel  the  grant,  the  fraud  must  be  proved  in  a  direct  pro 
ceeding,  instituted  for  that  very  purpose,  by  the  Government  itself ; 
but  when  the  question  of  its  validity  arises  in  a  suit  between  private 
parties,  it  must  be  determined  like  any  other  question  so  far,  and  so 
far  only,  as  they  have  an  interest  in  it.  The  party  whose  rights  would 
otherwise  be  injuriously  affected  by  it  may  show  the  truth  in  self-de 
fense. 

Our  learned  opponents  have  surprised  me  by  squarely  asserting  the 
doctrine  that  a  private  party  must  submit  to  be  ruined  by  a  void  and 
fraudulent  grant,  unless  the  Government  chooses  to  apply  for  its  can 
cellation.  To  back  this  they  produce  but  a  single  case.  Passing  over 
the  simple  elementary  principles  found  in  the  text-books,  and  ignoring 
the  hundreds  of  cases  in  which  their  theory  is  contradicted,  they 
adroitly  call  your  attention  to  Seabury  vs.  Field  (19  How.,  323), 
which  proves  nothing  on  the  subject.  The  head-note  of  the  reporter, 
read  by  my  brother  Evarts,  gives  no  idea  of  the  decision,  which  was 
this  :  A  and  B  both  had  grants  for  the  same  land  ;  A  had  the  elder 
and  was  in  actual  possession  ;  B's,  besides  being  junior,  was  worthless 
for  want  of  registry.  Nevertheless  B  brought  ejectment,  and  the 
court  held  that  he  could  not  be  permitted  to  make  out  his  case  by 
showing  the  defendant's  patent  to  be  fraudulent.  Is  that  a  denial  of 
the  principle  we  contend  for  ?  Would  you  infer  from  this  that  a  de 
fendant  in  possession  under  a  title  prima  facie  good  might  not  prove 
the  patent  on  which  the  plaintiff  sued  him  to  be  void  for  corruption  ? 

A  patent,  or  the  extension  of  a  patent,  is  wholly  void  if  obtained 
by  fraud.  This  is  not  denied.  It  is,  therefore,  a  mere  nullity  ;  it  has 
no  legal  existence ;  it  is  inoperative  for  any  purpose.  Would  Mr. 
Evarts  or  Mr.  Stoughton  advise  a  client  to  bring  suit  for  the  infringe 
ment  of  a  void  patent  ?  In  all  the  vast  variety  of  their  professional 
achievements  have  they  ever  recovered  on  a  void  instrument  of  any 
kind  ?  Do  they  suspect  that  any  court  within  the  limit  of  Christian 
civilization  would  permit  such  a  recovery  ?  If  the  defendant  in  a  case 
like  this  shows  that  the  plaintiff's  patent  is  void,  because  it  was  not 
issued  by  the  proper  officer,  or  because  the  claim  is  broader  than  the 
invention,  or  because  the  discovery  of  the  patentee  had  been  antici 
pated  by  another,  nobody  would  think  of  saying  that  the  suit  could 
be  sustained.  My  learned  friends,  all  three  of  them,  would  admit  una 
voce  that  the  patent,  being  void  for  any  of  these  reasons,  the  cause  is 
a  failure.  They  would  admit  that  any  kind  of  invalidity  might  be 
shown,  except  that  which  comes  from  the  willful  fraud  of  the  party 
who  seeks  to  gain  by  it.  Does  the  law  maintain  this  strange  anomaly 
out  of  pure  tenderness  for  the  interests  of  rascaldom  ?  Does  a  court 
of  equity  punish  an  honest  patentee  for  a  mere  blunder,  and  then 


492  FORENSIC. 

break  all  the  rules  of  its  logic  for  the  sake  of  giving  protection  to 
knavery  and  corruption  ?  I  certainly  would  have  expected  my  friends 
on  the  other  side  to  admit  that  their  claim  is  defeated  by  any  proof 
which  shows  their  patent  to  be  void,  and,  above  all,  if  it  be  void  for 
the  dishonesty  by  which  it  was  procured. 

There  is  no  species  of  fraud  upon  which  the  mind  of  a  judge  looks 
with  so  much  abhorrence  as  a  false  and  deceptive  collusion  between 
parties  who  profess  to  be  managing  a  cause  on  opposite  sides.  It  is  a 
scandalous  shame  upon  the  law.  It  poisons  the  stream  of  justice  at 
its  very  fountain.  No  judgment,  sentence,  or  decree  of  any  tribunal, 
judicial  or  quasi-judicial,  can  stand  if  proved  to  be  obtained  in  that 
way.  Not  only  will  a  court  of  equity  give  relief  to  a  third  person  who 
is  injured  by  it,  but  the  lowest  court  in  the  country  may  disregard  it 
when  it  comes  into  question  collaterally. 

We  insist  upon  it  that  the  judge  of  the  Circuit  Court  was  right  in 
holding  that  we  might  make  this  defense.  He  went  on,  however,  to 
say  that  we  could  not  avail  ourselves  of  it  unless  we  proved  it  satisfac 
torily.  To  this  also  we  assent  most  cordially.  You  can  not  presume 
fraud  in  such  a  case ;  it  must  be  proved  ;  and  proof  that  is  not  satis 
factory  is  no  proof  at  all.  But  if  the  fraudulent  collusion  is  not  irre 
sistibly  made  out  in  this  case,  there  is  an  end  of  all  reliance  on  human 
evidence.  Let  us  see. 

I  take  it  for  granted  that  nobody  on  the  bench,  or  at  the  bar,  has 
meant  to  cast  the  slightest  imputation  on  the  veracity  of  the  witnesses 
who  testify  on  this  subject.  They  are  among  the  most  eminent  coun 
selors  in  this  country— Mr.  Jenckes,  Mr.  Brady,  Mr.  Blatchford,  Mr. 
Judson,  and  Mr.  Clarence  Seward.  Two  of  these  gentlemen  are  dead, 
one  of  them  has  been  translated  to  the  bench  ;  the  other  two  still  re 
main  at  the  bar,  enjoying  now,  as  they  have  ever  enjoyed,  the  entire 
confidence  of  all  the  courts  in  which  they  practice,  including  this 
court.  They  could  not  have  made  any  mistake,  for  their  statements 
relate  to  a  proceeding  which  they  themselves  conducted  from  begin 
ning  to  end  ;  all  which  they  saw,  and  a  large  part  of  which  they  were. 
Some  circumstantial  variety  there  may  be,  but  not  the  least  conflict  in 
their  testimony  upon  any  material  point.  Nor  are  they  contradicted 
by  anybody  else.  On  the  contrary,  all  the  known  facts  in  the  case  cor 
roborate  them  in  every  word. 

Now,  what  do  they  say  ?  The  unvarnished  account  which  I  shall 
give  of  their  testimony  is  fully  verified  by  the  record.  The  counsel  of 
the  Goodyear  patentees  was  applied  to  and  his  advice  sought  concern 
ing  this  application.  After  conferring  with  others,  he  and  they  came 
to  the  deliberate  conclusion  that  the  application  could  not  go  through 
the  Patent-Office  upon  the  facts  as  they  knew  them  to  be.  In  other 
words,  there  was  not  even  a  forlorn  chance  of  success,  if  anybody 
acquainted  with  the  subject  would  make  opposition  to  it  in  good  faith. 


FORENSIC.  493 

Opposition  was  apprehended  from  Horace  Day,  who  had  always  been 
the  inveterate  enemy  of  Goodyear,  and  of  all  the  Goodyear  party.  It 
was  not  to  be  expected  that  he  would  pretermit  such  an  opportunity 
as  this  "to  feed  fat  that  ancient  grudge  he  bore  them."  He  was  not 
only  hostile  to  the  parties,  but  he  had  a  deep  interest  in  preventing 
the  extension,  and  he  had  already  employed  a  large  corps  of  able  coun 
selors  to  take  charge  of  that  interest.  He  also  had  within  his  reach, 
and  within  his  knowledge,  the  facts  which  would  make  his  opposition 
irresistible  and  overwhelming.  There  was  nothing  for  it  but  to  buy 
Day,  and  he  was  bought.  They  had  raised  a  fund  of  nearly  $70,000 — 
the  licensees  being  regularly  organized  for  the  purpose  of  prosecuting 
this  application — and  had  put  that  fund  into  the  hands  of  a  treasurer, 
whose  business  was  to  pay  it  out  wherever  it  could  be  made  most 
effective.  I  do  not  say  that  any  portion  of  the  fund  was  paid  into  the 
hands  of  Day,  for  the  record  does  not  show  that  it  was  ;  but  it  is  per 
fectly  clear  that  a  large  portion  of  it  was  paid  to  his  counsel,  and  with 
his  consent. 

The  consideration  which  brought  Day  into  the  service  was  an 
agreement  with  him  that  if  he  would  aid  them,  in  the  way  thought  to 
be  most  effective  at  the  time  (I  use  the  language  of  Mr.  Brady),  in 
getting  an  extension,  which  he  and  they  knew  they  had  no  right  to, 
they  would  divide  with  him  the  fruits  of  their  joint  iniquity.  That 
is,  after  this  nefarious  extension  should  be  obtained  in  this  criminal 
way,  they  would  hunt  in  couples,  and  prey  on  the  public  in  partner 
ship.  In  pursuance  of  that  corrupt  arrangement,  Day  sent  his  whole 
effective  force  to  the  side  of  the  applicants.  All  the  powers  that  he 
had  arrayed  in  the  field  against  the  extension  struck  their  tents  and 
marched  over  in  a  body  to  the  other  camp.  He  sent  them  there,  and 
after  they  were  there  they  continued  to  act  under  his  orders.  But  he 
himself  kept  his  flag  flying.  He  continued  ostensibly  in  his  old  posi 
tion,  and  loudly  vaunted  his  determination  to  hold  it  to  the  last  ex 
tremity  ;  while  his  lieutenants  were  training  their  guns  upon  it  and 
blazing  away  with  all  their  might. 

To  speak  without  metaphor  :  Day  came  before  the  commissioner, 
denounced  the  application  as  most  nefarious,  and  claimed  the  right, 
which  he  had  as  an  American  citizen  interested  in  the  subject-matter, 
to  appear  there  as  a  party.  This  was  conceded,  and  his  name  was 
placed  on  record  as  the  party  opposing  the  extension,  for  the  protec 
tion  of  his  own  rights  and  the  rights  of  all  persons  who  were  situated 
as  he  was.  Occupying  that  attitude,  he  treacherously  gave  away  the 
cause  which  he  pretended  to  support.  He  was  legally  entitled  to 
notice  of  every  step  that  might  be  taken  in  the  proceeding.  He  had 
a  right  to  cross-examine  the  witnesses  for  the  extension,  and  he  exer 
cised  it  only  in  the  interests  of  the  applicants.  He  took  voluminous 
depositions  himself,  but  he  took  precious  good  care  to  include  in  them 


494  FORENSIC. 

none  of  the  facts  which  would  injure  the  chances  of  the  other  side. 
Upon  the  commissioner  they  had  all  the  imposing  effect  that  was  due 
to  opposition  evidence.  He  had  a  right  to  suppose  that  what  was  not 
proved  by  a  vigilant  and  malicious  enemy  like  Day  did  not  exist ;  and 
accordingly  that  constituted  a  very  large  element  in  the  judgment 
which  he  finally  made  up. 

Not  content  with  that,  Mr.  Day  filed  an  affidavit  of  his  own, 
which  he  swore  to,  filled  with  the  most  extravagant  accusations 
against  Goodyear  and  his  friends,  all  of  which  appeared  to  the  com 
missioner,  in  the  light  of  the  evidence  before  him,  to  be  merely  false. 
The  affidavit  may  have  been  true,  or  he  may  have  thought  it  was 
true  ;  but  it  is  certain  that  he  did  not  intend  it  to  be  believed  by  the 
commissioner,  for  at  that  very  time  he  was  engaged  in  aiding  the 
counsel  on  the  other  side  to  make  up  an  argument,  out  of  materials 
which  he  himself  furnished,  to  prove  that  every  line  and  letter  of  his 
own  affidavit  was  false. 

The  commissioner  naturally  and  necessarily  looked  upon  Day  as  a 
base  persecutor,  and  on  Goodyear  as  a  much-injured  and  very  ill-used 
gentleman.  They  had  calculated  precisely  the  effect  of  this  upon  Mr. 
Holt's  mind.  They  knew  very  well  that  in  proportion  as  his  wrath 
would  be  roused  against  Day,  in  that  proportion  his  affections  would 
warm  to  Goodyear.  He  decided  the  case  in  a  perfect  tumult  of  feel 
ing,  which  poured  itself  forth  in  a  stream  of  blazing  rhetoric,  filled 
with  maledictions  on  Day,  but  coupled  with  such  a  eulogy  011  Good 
year  as  scarcely  any  benefactor  of  the  human  race  has  ever  deserved. 
Mirabeau's  funeral  oration  on  Dr.  Franklin  before  the  French  Acade 
my  was  tame  in  comparison.  I  am  not  aware  that  any  one  has  ever 
pronounced  so  lofty  a  panegyric  on  the  genius  and  virtue  of  Newton, 
La  Place,  or  Kepler. 

All  this  was  brought  about  by  trick,  imposture,  deception.  Mr. 
Holt  never  saw  the  case  in  any  light  approaching  the  truth.  He 
understood  none  of  the  relations  which  existed  between  any  of  the 
parties.  He  was  compelled  to  put  a  false  construction  upon  all  their 
conduct,  and  all  their  words,  and  all  their  evidence.  From  beginning 
to  end  of  the  proceeding  he  was  surrounded  with  all  the  machinery  of 
false  pretenses,  and  at  every  step  he  was  misled  by  some  false  token. 

And  now  you  are  told  by  Mr.  Evarts  that  we  have  not  proved  this 
fraud  to  be  the  cause  of  the  decision,  since  Mr.  Holt  might  peradvent- 
ure  have  decided  the  same  way  anyhow  on  the  true  merits  of  the 
case.  Are  we  bound  to  prove  not  only  the  fraud  and  its  connection 
with  the  grant,  but  also  that  one  would  not  have  existed  without  the 
other  ?  No ;  the  rule  undoubtedly  is  that  the  slightest  contact  of 
fraud  with  any  grant  taints  it  through  and  through.  It  is  either  alto 
gether  pure  or  else  it  is  wholly  void.  But  this  is  not  merely  a  touch 
— it  is  all  fraudulent ;  and  the  covin  is  mixed  with  every  part  of  it. 


FORENSIC.  495 

You  do  not  trace  the  deception  here  as  you  generally  do  in  other 
cases,  like  a  dirty  thread  running  through  a  clean  tissue  into  which 
it  has  been  woven,  but  the  whole  web,  warp  and  woof,  is  made  of 
corrupt  and  rotten  material. 

But  you  may,  if  you  choose,  imagine  what  Mr.  Holt  would  have 
done  if  he  had  known  what  you  know.  Suppose  he  had  suddenly 
caught  these  people  with  their  masks  off,  and  discovered  that  all  this 
persecution  which  made  him  so  indignant  was  paid  for  by  the,  Good 
year  party,  and  furnished  on  contract,  like  an  article  of  merchandise  ; 
that  they  were  acting  in  concert,  and  not  in  hostility  at  all ;  that 
when  they  stood  before  him  glaring  at  one  another  with  simulated 
ferocity  they  were  only  playing  the  part  set  down  for  them  ;  that  he 
was  sitting  there,  like  a  country  boy  at  a  theatre,  and  made  to  believe 
that  the  sham  battle  was  a  real  thing  ;  that  all  the  parties  were  banded 
and  confederated  together  to  play  upon  him  and  "  fool  him  up  to  the 
top  of  his  bent."  What  would  he  have  done  ?  Why,  the  parties 
themselves  (or  the  counsel  rather)  have  told  you  on  their  oaths  that 
Mr.  Holt,  being  an  honorable  man,  would  have  instantly  decided 
against  the  extension,  if  he  had  discovered  Day's  collusion  with  the 
applicants.  You  can  not  doubt — you  have  no  right  to  doubt — that 
had  the  parties  thrown  aside  their  disguises  for  one  moment,  and  al 
lowed  themselves  to  be  seen  in  their  true  character,  he  would  have 
done  what  either  of  you  would  have  done  in  the  same  circumstances  ; 
that  is,  blown  the  case  into  atoms.  So,  therefore,  we  have  shown 
(what  in  such  a  case  is  generally  impossible)  not  only  that  a  fraud  was 
committed,  but  that  the  detection  of  the  fraud  would  have  defeated 
the  purpose  for  which  it  was  practiced. 

We  have  shown  more — much  more.  It  is  incontestibly  proved 
that  by  the  collusion  with  Day  the  applicants  succeeded  in  covering 
up  the  receipt  by  Goodyear  of  more  than  two  hundred  thousand  dol 
lars — a  sum  greatly  larger  than  the  whole  amount  which  they  dis 
closed.  It  is  pretended  that  they  could  have  proved  these  receipts, 
thus  falsely  kept  from  the  knowledge  of  the  commissioner,  to  be  for 
the  hard-rubber  patent.  But  that  can  not  be  true,  for  the  simplest  of 
all  reasons  :  Charles  Goodyear  was  not  the  owner  of  the  hard-rubber 
patent,  and  never  in  his  life  had  the  smallest  right  to  take  a  cent  on 
that  account. 

These  combined  parties  were  guilty  of  another  concealment,  which 
I  will  mention  to  show  the  enormous  magnitude  of  the  outrage  which 
was  perpetrated  on  public  justice  and  private  right.  You  know,  and 
everybody  knows,  that  Charles  Goodyear's  patent  was  the  richest  mo 
nopoly  this  Government  ever  bestowed  upon  any  private  man.  From 
the  moment  it  issued  the  revenues  of  those  who  had  it  were  counted 
by  millions.  But  only  a  small  part  of  its  proceeds  went  directly  into 
the  pockets  of  Goodyear  himself.  These  plaintiffs,  and  others  with 


496  FORENSIC. 

whom  they  confederated  to  get  the  extension,  had  induced  him  to 
give  them  assignments  and  licenses  for  nothing,  or  next  to  nothing — 
stripped  him  of  his  right  to  an  imperial  income,  and  then  sent  him, 
old,  sick,  and  insolvent,  across  the  Atlantic,  to  starve  and  die  in  a 
foreign  country.  His  genius,  his  virtue,  the  value  of  his  invention, 
and  the  raggedness  of  his  poverty,  were  the  themes  on  which  they 
dilated  before  the  commissioner.  Mr.  Holt  decided  erroneously  that, 
although  the  public  had  already  paid  for  the  invention  a  thousand 
times  over,  yet,  as  it  was  the  assignees  who  got  the  money,  he  would 
grant  the  extension  for  the  benevolent  purpose  of  relieving  the  invent 
or  himself.  He  did  not  know  (what  he  would  have  known  but  for 
the  fraudulent  conspiracy  to  deceive  him)  that  those  same  assignees 
had  their  grip  on  the  extension  as  tight  as  it  ever  was  on  the  original 
patent ;  that  they  had  already  secured  the  fruits  of  it  to  themselves  ; 
that  all  the  profits  of  the  decision  asked  for  would  go,  not  to  relieve 
Goodyear,  but  to  swell  the  colossal  fortunes  of  the  sharp  and  heartless 
men  who  had  already  reduced  him  to  the  last  extremes  of  want  and 
necessity.  These  same  assignees  are  now  here  declaring,  in  their  argu 
ments  and  on  the  record,  that  Goodyear's  executors  shall  not  have  a 
cent  out  of  this  decree.  Their  attitude  is  as  hostile  to  him  as  to  us. 
With  an  ambidextrous  rapacity  which  is  fairly  appalling  they  reach 
out  one  hand  to  grab  the  property  of  the  defendants,  and  with  the 
other  they  fight  off  the  family  and  creditors  of  the  man  whose  virtuous 
poverty  they  pleaded  as  the  only  foundation  of  their  right  to  take  it 
at  all.  If  Mr.  Holt  had  known  these  things,  would  he,  could  he,  have 
granted  the  extension  ? 

I  submit  that  it  is  perfectly  impossible.  His  written  opinion, 
taken  in  connection  with  all  the  facts  as  they  are  now  known,  shows 
beyond  doubt  that  his  decision  was  obtained  solely  by,  and  in  conse 
quence  of,  the  imposture  practiced  upon  him. 

But  we  are  told  that  the  defendants  are  bound  to  be  dumb  on  the 
subject  of  this  fraud,  atrocious  as  it  is,  because  they  consented  to  it. 
It  is  urged  that  we  can  not  open  our  mouths  to  complain  of  it  without 
admitting  our  own  guilt,  and  nemo  audiendum  est  suam  turpitudinem 
allegans.  Our  learned  friends  are  wrong  in  their  law,  and  totally  mis 
taken  about  the  matter  of  fact. 

A  plaintiff  who  seeks  equity  must  come  into  court  at  least  with 
clean  hands,  if  not  with  a  pure  heart.  If  it  be  shown  that  his  claim 
rests  upon  his  own  corruption,  it  is  no  answer  to  say  that  his  opponent 
is  as  bad  as  himself.  He  can  not  make  out  a  title  for  relief  by  accu 
sations  against  the  other  party,  which  do  not  clear  his  own  skirts.  A 
court  of  law  generally,  and  a  chancellor  always,  refuses  to  interfere 
between  two  parties  who  are  equally  culpable.  In  such  a  case  the 
maxim  is  melior  est  conditio  defendentis. 

But  I  answer  this  whole  argument  by  denying  the  fact.     I  wish  to 


FORENSIC.  497 

make  the  denial  as  emphatic  as  possible.  If  I  had  the  voice  of  forty 
thousand  trumpets  I  could  not  speak  my  contradiction  more  loudly 
than  the  truth  would  warrant.  The  defendants  never  said,  or  did,  or 
suffered  anything  which  directly  or  indirectly,  expressly  or  by  any 
kind  of  implication,  involves  them  in,  or  connects  them  with,  the  dis 
honest  tricks  by  which  the  extension  was  procured.  They  knew  noth 
ing  whatever  of  that  most  filthy  bargain  with  Day ;  did  not  suspect 
it ;  had  no  reason  to  suspect  it  until  long  afterward,  when  the  plaint 
iffs  and  Day  quarreled  about  the  division  of  the  spoils,  and  peached 
upon  one  another. 

Nor  did  they  ever  give  any  sort  of  assent  to  the  extension  itself, 
except  what  consisted  in  mere  forbearance  to  oppose  it.  They  had  a 
license  for  making  japanned  or  varnished  goods,  which,  by  its  terms, 
was  to  last  as  long  as  any  patent  which  Goodyear  then  had  or  might 
afterward  be  able  to  obtain.  They  had  another  license  for  shoes  and 
boots,  which  was  to  expire  with  the  then  existing  patent.  Their  last 
license,  it  was  agreed,  should  be  renewed  in  case  the  extension  was  ob 
tained.  The  defendants  did  not  intend  to  be  engaged,  and  never  were 
engaged,  in  any  business  except  what  these  two  licenses  would  fairly 
cover.  They  could  pay  the  tariffs  reserved  and  still  have  a  reasonable 
profit.  They  had  no  interest  which  would  justify  them  in  coming 
here  to  spend  money,  time,  and  labor  in  opposing  the  application. 
Nor  had  they  any  hostile  feelings  to  Goodyear  ;  they  were  his  friends 
— one  of  them  the  most  intimate  friend  he  ever  had  ;  they  had  sus 
tained  him  in  all  his  troubles  ;  they  had  given  him  their  factory  and 
materials  to  make  goods  for  himself  at  a  time  when  he  was  not  able 
to  pay  them  a  cent,  and  he  never  did  pay ;  they  were  his  creditors 
then,  and  are  now :  this  record  shows  that  they  have  an  unsatisfied 
judgment  against  him  for  eighty  thousand  dollars,  and  that  he  died 
hopelessly  insolvent.  If  he  had  lived,  and  could  have  prevented  it,  this 
iniquitous  suit  would  never  have  been  brought.  Does  the  forbearance 
of  the  defendants  under  these  circumstances  disarm  them  of  the  right 
of  self-defense  against  the  void  extension  ?  Must  they  submit  in  si 
lence  to  be  ruined  by  a  fraud  of  which  they  knew  nothing  until  its 
perpetrators  gave  them  notice  that  they  were  to  be  its  victims  ?  The 
plaintiffs'  counsel  have  not  pretended  that  there  is  any  legal  estoppel 
upon  us — if  there  were,  equity  would  relieve  from  it ;  and  I  ask  each 
member  of  the  court  to  tax  his  memory  and  see  whether  he  can  recol 
lect  a  single  case,  at  all  analogous  to  this  one,  in  which  the  doctrine  of 
equitable  estoppel  was,  or  ought  to  have  been,  applied. 

II.  My  second  point  does  not  lie  so  entirely  on  the  surface  of  the 
case  ;  indeed,  my  ingenious  friends  have  succeeded  in  burying  it  rather 
deep  out  of  sight.  I  mean  the  separation  of  the  two  inventions  into 
two  patents,  which  makes  this  a  somewhat  curious  case. 

32 


498  FORENSIC. 

Your  honors  know  that  India  rubber,  in  its  native  condition,  is  in 
applicable  to  many  purposes  for  which  some  of  its  qualities  seem  to  fit 
it.  A  great  number  of  persons  were,  consequently,  engaged  in  trying 
to  improve  its  usefulness.  The  first  one  who  made  any  considerable 
progress  in  that  direction  was  Nathaniel  Hayward,  who  discovered  that 
a  compound  of  rubber  and  sulphur  was  very  superior  to  native  rubber, 
and  he  got  a  patent.  The  drawback  upon  the  value  of  his  invention 
was,  that  the  cost  of  making  the  mixture  was  so  great  that  it  would 
not  pay  expenses.  To  remedy  this,  Chaffee  (one  of  these  defendants) 
invented  a  very  complicated  piece  of  machinery  for  grinding  the  rub 
ber  up  and  mixing  it  with  the  sulphur  in  proper  proportions.  His 
machine  did  this  easily,  cheaply,  and  rapidly,  and  it  also  was  patented. 
After  this,  Hay  ward's  compound  of  rubber  and  sulphur,  mixed  to 
gether  by  means  of  Chaffee's  machine,  went  into  universal  use.  The 
demand  for  it  was  extensive  enough  to  keep  several  large  factories  in 
operation.  But  Hay  ward's  compound,  superior  as  it  was  to  simple 
rubber,  was  very  far  from  being  a  perfect  thing.  It  was  so  sensitive 
to  heat  and  cold  that  in  the  winter  it  stiffened  and  became  as  hard 
as  a  bone,  while  in  the  summer  it  was  so  sticky  that  it  could  scarcely 
be  handled.  Then  came  Goodyear's  invention,  which  consisted,  simply, 
in  the  discovery  that  Hayward's  compound  of  rubber  and  sulphur  was 
a  better  article  when  cooked,  baked,  or  roasted,  than  it  was  in  its  raw 
state.  Subsequently  to  that  he  found  that  the  addition  of  another  ingre 
dient  to  the  compound,  namely,  a  carbonate  or  other  salt,  or  oxide  of 
lead,  increased  the  value  of  the  compound.  But  the  improvement,  by 
cooking  Hayward's  compound,  was  the  great  secret  which  he  disclosed. 

He  said  that  he  had  found  this  out  by  accident.  He  had  a  piece 
of  Hayward's  compound  in  his  hand  and  let  it  drop  thoughtlessly  upon 
the  cylinder  of  a  stove,  moderately  heated,  where  it  lay  for  some  time. 
When  he  took  it  up  he  found  it  materially  changed  in  some  of  its 
qualities.  The  alteration  was  like  that  which  a  piece  of  dough  suffers 
when  the  action  of  heat  converts  it  into  bread. 

Unfortunately  for  himself  and  others,  his  description  obscured  it 
very  much.  He  went  round  and  round  the  point  with  a  wide  circum 
locution.  He  was  not  an  impostor — I  don't  say  he  was  a  humbug — 
but  he  was  a  quack,  an  empyric,  a  sciolist,  without  any  of  that  grand 
simplicity  which  belongs  to  true  genius.  After  exhausting  his  vocabu 
lary  of  scientific  words  in  showing  how  a  thing  might  be  baked  in  an 
oven  without  once  using  the  Saxon  word  that  would  have  made  it  per 
fectly  plain,  he  bespoke  for  the  cooked  article  the  name  of  vulcanized 
rubber — a  term  far-fetched  from  the  Greek  mythology — but  it  looked 
classical  to  some,  and  mysterious  to  others.  He  was  like  that  ambi 
tious  and  learned  showman  who  said  to  his  customers  :  "  This  here 
animal  the  common  folks  calls  a  Utty-goat,  but  we  gentlemen  of  sci 
ence  calls  him  the  Gulielmus  Capricornus." 


FORENSIC.  499 

His  discovery  was  precisely  analogous  to  one  that  was  made  in  Ire 
land  soon  after  Sir  Walter  Raleigh  introduced  potatoes  into  that  coun 
try.  For  a  while  the  natives  ate  them  raw,  and  did  not  find  them  very 
good  ;  but  one  of  the  tubers  happened  to  fall  into  the  hot  ashes  of  a 
turf  fire,  and  was  found  to  be  much  improved.  Since  that  time  the 
Irish  people  have  vulcanized  all  their  potatoes. 

I  have  not  made  these  remarks  to  depreciate  the  value  of  Good- 
year's  invention.  It  was  a  great  benefaction  to  the  world.  I  only 
wish  he  had  not  tried  to  mystify  the  public  by  marring  its  simplicity. 
If  it  was  true  that  he  was  the  original  discoverer,  and  the  first  to  apply 
it  to  practical  purposes,  he  was  entitled  to  a  patent.  It  was  believed 
to  be  true,  and  he  got  a  patent,  which  patent,  re-issued  and  extended, 
was  held  by  him  and  his  assignees  during  his  whole  life-time,  much  to 
their  profit.  But  after  his  death  it  was  again  surrendered  and  two 
patents  were  taken  out,  one  as  they  say  for  the  process  and  one  for  the 
product — one  for  the  cause  and  one  for  the  effect — one  for  the  result 
and  one  for  the  only  means  by  which  the  result  can  be  brought  about. 
I  dare  not  call  this  absurd  when  I  recollect  who  it  is  that  thinks  it 
very  sensible  and  proper  ;  but  to  me  it  seems  as  inconsistent  with  rea 
son  as  it  would  be  for  the  inventor  of  a  new  horse-power  to  get  one 
patent  for  putting  the  horse  to  the  machine,  another  for  putting  the 
machine  to  the  horse,  and  a  third  for  putting  the  two  together.  The 
Circuit  Court  held  that  the  original  patent  for  Goodyear's  single  and 
simple  invention  was  separable  into  two.  Upon  looking  at  one  of 
them  the  judge  ascertained  that  it  was  wholly  void,  but  he  held  the 
other  to  be  good,  and  good  not  only  for  that  part  of  the  invention 
which  it  was  intended  to  cover,  but  good  for  all  the  purposes  that  both 
patents  would  have  served,  if  both  had  been  free  from  objection.  One 
of  the  grave  questions  you  have  now  to  decide  is  whether  this  ruling 
can  be  sustained. 

I  do  not  deny  that  on  the  surrender  of  one  patent  the  re-issue  may 
consist  of  two  others.  The  act  of  Congress  authorizes  this,  but  ex 
pressly  confines  it  to  cases  where  the  re-issued  patents  are  for  distinct 
and  separate  parts  of  the  invention  covered  by  the  original.  What 
are  "distinct  and  separate  parts"  ?  Judge  Grier  says  different  inven 
tions.  Certainly  the  statute  does  not  permit  several  patents,  except 
for  parts  of  an  invention  which  are  so  far  unconnected  that  they  may 
be  separately  used  for  practical  purposes. 

For  instance,  suppose  a  man  to  have  a  patent  for  a  locomotive, 
which  he  describes  as  being  fitted  up  with  a  steam  whistle.  He  may 
surrender  it  and  take  two  patents — one  for  the  locomotive  and  one  for 
the  whistle — because  a  locomotive  may  be  a  useful  machine  without  a 
whistle,  and  a  whistle  may  be  used,  not  only  on  a  locomotive,  but  on 
the  engine  of  a  ship,  or  on  a  stationary  engine  at  a  mill  or  a  furnace. 
But  could  he  divide  his  whistle  into  two  parts,  and  take  one  patent  for 


500  FORENSIC. 

the  process  and  one  for  the  product  of  that  ?  The  process  there 
would  he  a  certain  mode  of  letting  the  steam  escape  through  an  aper 
ture  in  the  boiler,  and  the  product  is  that  shrill  and  startling  noise 
which  rushes  along  the  track,  darts  across  the  plains,  and  echoes 
among  the  hills.  If  these  could  be  separated  into  different  patents, 
then  they  might  be  sold  to  different  persons.  One  would  have  the 
exclusive  right  to  let  his  steam  escape,  provided  he  made  no  noise,  and 
the  other  might  whistle  as  much  as  he  pleased,  if  he  did  not  use  the 
only  possible  means  of  doing  so.  This  is  the  reductio  ad  absurdum 
of  the  opposing  doctrine,  and  it  shows  fairly  the  legal  impossibility  of 
separating  process  and  product  where  one  is  useless  without  the  other. 

I  am  not  flying  in  the  face  of  any  decision  that  has  ever  been 
made  by  this  court  or  by  any  judge  on  the  circuit.  I  do  not  deny  that 
a  patent  may  issue  for  a  product  alone,  or  for  a  process  alone.  But 
this  is  consistent  with  reason  and  law  only  where  the  process  is  a  new 
means  of  bringing  about  some  result  previously  known  but  produced 
in  other  ways,  or  else  where  the  product  is  a  new  result  of  means  pre 
viously  used  and  still  applicable  to  other  purposes.  But,  where  the 
two  stand  together  in  the  invariable  relation  of  cause  and  effect — 
where  the  process  always  produces  one  result  and  the  product  conies 
only  from  the  one  process — then  God  and  Nature  have  put  them  to 
gether,  and  no  man  can  put  them  asunder. 

Emerson  got  a  patent  for  making  brass.  Brass  had  been  known  and 
used  from  the  time  of  Tubal  Cain,  but  previous  to  1780  it  had  been 
made  by  mixing  copper  clippings  with  calamine,  a  native  carbonate  of 
zinc,  and  heating  them  until  the  carbon  was  driven  off  and  the  zinc 
became  incorporated  with  the  copper.  Emerson  adopted  the  simple 
plan  of  making  the  amalgam  by  taking  its  two  constituent  metals  in 
their  pure  state  and  melting  them  together.  His  patent  was  for  noth 
ing  but  a  process. 

The  man  who  invented  German  silver  had  or  might  have  had  a 
patent  for  the  product  only.  That  was  a  new  amalgam  composed 
mainly  of  copper  and  tin.  The  modes  of  uniting  metals  were  numer 
ous,  and  almost  as  old  as  the  hills.  But  this  man  could  say  to  the 
world,  "  No  matter  how  you  mingle  these  metallic  elements  ;  you  may 
hammer  them  together  in  a  forge  ;  you  may  heat  them  together  in  a 
crucible  until  one  is  absorbed  by  the  other ;  you  may  melt  them  to 
gether  ;  you  may  melt  them  separately  and  run  them  together  while 
they  are  in  a  state  of  fusion  ;  or  you  may  melt  the  one  which  fuses  at 
the  highest  temperature  and  throw  cold  lumps  of  the  other  into  the 
molten  mass ;  but  howsoever  you  do  it  you  shall  not  by  any  process 
make  the  product  of  which  I  first  discovered  the  value,  and  which  I 
was  the  first  to  make  known." 

What  Goodyear  discovered  was  simply  a  law  of  nature,  that  a  cer 
tain  cause  would  produce  a  certain  effect  upon  rubber  and  sulphur. 


FORENSIC.  501 

You  can  not  put  this  into  any  intelligible  form  of  words  without  ex 
pressing  the  whole  of  it ;  no  effort  of  the  mind  will  enable  you  to 
conceive  it  in  separate  parts ;  the  effect  can  not  exist  without  the 
cause,  and  the  cause  is  not  cause  at  all  unless  it  produces  the  effect. 

Judge  Clifford  demonstrated  the  impossibility  of  dividing  this  in 
vention.  He  found  that  the  patent  for  the  process  was  void,  and  of 
course  we  were  not  infringers  of  that.  But  he  said  that  we  had 
infringed  the  patent  for  the  product,  which  was  good.  Upon  these 
facts  he  did  his  very  best — I  take  it  upon  me  to  say  that  he  exerted 
all  his  ingenuity  to  the  utmost — to  divide  the  damages  and  apportion 
them  to  the  different  patents ;  for  as  an  honest  man  and  an  upright  judge 
it  must  have  been  the  desire  of  his  whole  heart  to  relieve  us  from  any 
damages  on  account  of  a  charge  which  he  found  us  not  to  be  guilty 
of.  But  he  could  not  make  the  separation  even  theoretically.  Sharp 
as  his  metaphysical  scissors  were,  and  skillful  as  you  know  him  to  be 
in  the  use  of  them,  he  could  find  no  place  where  he  could  insert  them 
between  process  and  product  in  this  case.  He  saw  plainly  enough  that 
separation  was  destruction. 

But  in  truth  there  is  no  product  here.  Changing  the  rubber  and 
sulphur  by  baking  it  is  not  making  a  new  thing.  The  temporary  ap 
plication  of  an  external  agent  changes  one  quality  of  the  compound, 
namely,  its  sensitiveness  to  the  variations  of  weather,  and  leaves  its 
other  characteristics — flexibility,  elasticity,  imperviousness — unaltered. 
There  is  no  change  in  the  substance  of  the  compound  itself. 

Judge  Grier  once  made  a  remark  which  these  patentees  seem  to 
have  caught  at  with  great  avidity.  It  was  not  a  decision  of  either  fact 
or  law,  but  merely  obiter  dictum,  and  I  think  he  himself  must  now 
believe  it  to  be  wrong.  He  said  that,  as  we  could  know  nothing  of 
matter  except  by  its  qualities,  the  matter  was  new  if  its  quality  was 
changed.  This  is  specious  enough  to  have  received  the  assent  of  some 
great  thinkers  long  before  Judge  Grier  uttered  it.  The  metaphysical 
philosophy  of  the  last  century  was  full  of  it.  Locke  began  by  assert 
ing  that  the  secondary  qualities  of  bodies  had  no  inherent  connection 
with  the  substances  to  which  they  seemed  to  belong,  but  only  with  the 
organs  which  perceived  them  :  color  existed  in  the  eye,  the  odor  of  a 
violet  in  the  nose,  and  the  temperature  of  a  hot  iron  in  the  nerves  that 
shrunk  from  its  contact ;  or,  as  Butler  put  it, 

"  There's  no  more  heat  in  fire  that  heats  you, 
Than  there  is  pain  in  stick  that  beats  you." 

Berkeley,  by  the  same  reasoning,  showed  the  unreality  of  the  pri 
mary  qualities,  and  removed  the  seat  of  their  ideal  existence  to  the 
mind,  where  the  ultimate  impression  of  them  was  made.  Starting 
with  the  assumption  that  matter  was  nothing  but  an  assemblage  of 
qualities,  and,  like  Judge  Grier,  denying  all  other  knowledge  of  sub- 


502  FORENSIC. 

stance,  the  reasoning  seemed  to  be  faultless.  Dugald  Stewart  said 
that  Bishop  Berkeley  had  proved  by  unanswerable  arguments  what 
no  man  in  his  senses  could  possibly  believe.  It  was  a  dismal  theory. 
It  abolished  the  created  universe  without  restoring  the  reign  of 
Chaos  and  old  Night.  It  dissolved  all  human  relations,  for  the 
bodies  of  men  were  merely  "such  stuff  as  dreams  are  made  of."  It 
did  not  "strike  flat  the  thick  rotundity  of  the  globe,"  but  it  did 
worse,  for  it  made  it  a  nonentity.  "  This  brave  overhanging  firma 
ment,  this  gorgeous  canopy,  fretted  with  golden  stars,"  was  not  even 
what  Hamlet  called  it,  "a  pestilent  congregation  of  vapors"  ;  it  was 
a  huge  phantasm,  hung  on  high  to  cheat  and  delude  us.  The  fun 
damental  error  on  which  all  this  "  nonsense  was  piled  on  nonsense 
to  the  skies  "  consisted  in  the  assumption  that  we  could  know  noth 
ing  of  matter  except  by  its  qualities.  If  you  adopt  it,  you  will  craze 
the  law,  and  make  it  as  mad  as  the  metaphysics  of  Berkeley  and 
Hume. 

You  can  not  ignore  substance,  and  you  can  never  satisfy  the  com 
mon  sense  of  the  world  by  holding  that  a  new  product,  separately  pat- 
entable  as  such,  is  made  by  a  person  who  merely  changes  a  single 
quality  of  one  substance  by  the  temporary  operation  of  another  one 
upon  it.  When  you  send  a  stream  of  electricity  over  a  wire  wrapped 
round  a  piece  of  soft  iron,  you  change  the  quality  of  the  iron,  by  mak 
ing  it  capable  of  attracting  other  iron,  and  you  restore  its  original  con 
dition  when  you  withdraw  the  electric  current.  Does  a  telegraph- 
operator  create  and  un create  a  new  product  every  time  he  closes  and 
opens  the  galvanic  circle  ?  If  you  take  a  piece  of  smooth  steel  and 
drive  it  repeatedly  through  plates  of  iron,  it  will  become  permanently 
magnetized ;  but  the  steel  remains  steel,  the  same  substance  with  one 
of  its  qualities  altered  ;  and  no  one  can  say  that  a  new  product  has 
therefore  been  made. 

This  preposterous  idea  of  dividing  Goodyear's  invention  into  two 
parts  was  started  and  acted  upon  for  the  purpose  of  defrauding  the 
public,  and  preventing  other  inventors  from  getting  the  just  reward  of 
their  science  and  skill.  But  the  legal  effect  of  it  has  really  been  to 
make  both  the  patents  utterly  void.  If  you  regard  them  as  independ 
ent  patents,  they  are  void,  because  each  of  them  is  perfectly  useless, 
and  the  part  covered  by  it  incapable  of  being  applied  to  any  practical 
purpose.  Both  are  in  palpable  violation  of  the  act  of  Congress,  because 
they  are  not  for  distinct  and  separate  parts  of  an  invention.  The  best 
you  can  possibly  do  for  the  plaintiffs  is  to  treat  the  two  patents  as  one 
instrument,  and  that  will  not  help  them,  for  the  whole  claim,  taken 
and  considered  together,  is  admitted  by  themselves  to  be  false.  They 
are  in  such  connection  that,  supposing  one  to  be  sound,  the  acknowl 
edged  overclaim  of  the  other  infects  it,  "like  a  mildewed  ear  blasting 
its  wholesome  brother. " 


FORENSIC.  503 

III.  But  we  insist  that  both  patents  are  unsound  and  void,  because 
the  claim  is  overstated  in  each  of  them. 

What  was  the  invention  ?  The  improvement  of  Hayward's  com 
pound  by  cooking  it.  Afterward  he  claimed  that  he  could  make  the 
compound  still  better  by  putting  in  an  additional  ingredient,  to  wit, 
carbonate  or  oxide  of  lead.  This  was  the  whole  length  and  breadth  of 
his  discovery.  If  he  ever  knew  anything  beyond  this,  he  did  not  dis 
close  it,  but  "died  and  made  no  sign." 

His  experiments  were  all  made  with  Para  rubber.  There  were 
many  other  elastic  gums,  including  gutta-percha,  but  they  would  not 
cook  to  advantage  without  being  compounded  with  other  ingredients 
besides  sulphur  and  lead.  Some  improvement,  therefore,  must  be 
made  on  Goodyear's  invention,  or  else  the  business  would  come  to  a 
dead  stand  whenever  the  supply  of  Para  rubber  would  give  out,  as  it 
soon  did.  These  other  gums  began  to  be  used,  but  it  was  impossible 
to  make  a  merchantable  article  without  additional  ingredients,  and  the 
skill  of  many  manufacturers  was  employed  in  finding  out  how  to  vul 
canize  them.  The  owners  of  the  Goodyear  patent  saw  that  other  gums, 
unknown  to  him,  were  about  to  be  vulcanized  by  means  which  he  had 
never  thought  of.  In  order  to  anticipate  all  improvements,  and  keep 
the  undivided  monopoly  of  the  business  in  their  own  hands,  they  sur 
rendered  their  patent  and  took  a  re-issue  of  two.  In  one  they  claimed 
"all  vulcanizable  gums,"  and  in  the  other  they  asserted  their  exclusive 
right  to  vulcanize  them,  not  only  by  using  the  ingredients  which  Good 
year  had  discovered,  but  all  others.  They  claim  that  all  vulcanizing 
of  all  gums  is  within  Goodyear's  invention,  and  they  claim  it  equally 
whether  it  be  effected  "with  or  without  other  ingredients."  By  these 
two  patents  they  say  to  all  who  engage  in  the  business,  "You  may  go 
to  the  farthest  part  of  the  world  for  new  gums  to  vulcanize,  and,  after 
you  find  them,  you  may  search  the  earth,  the  ocean,  and  the  air  for 
new  ingredients  to  make  them  useful,  but  all  your  skill,  and  science, 
and  labor  in  making  these  indispensable  improvements  must  inure  to 
our  benefit.  Sic  vos  non  volis." 

I  beg  your  honors  to  consider  the  authorities  on  this  point  which 
we  have  cited  in  our  brief.  We  are  within  the  principle  of  all  the 
cases,  and  the  opinion  of  the  court  in  Morse  vs.  O'Eeilly  is  literally 
applicable  to  the  patent  which  our  opponents  try  to  sustain. 

IV.  A  word  now  about  our  license.  The  plaintiffs  at  one  time 
contended  that  it  was  in  conflict  with  the  license  previously  granted  to 
the  Naugatuck  Company  ;  but  that  question  has  not  been  raised  here. 
Judge  Clifford  settled  it  completely,  and  put  it  to  sleep. 

Mr.  JUSTICE  CLIFFORD. — Several  judges  have  decided  it  differently, 
but  I  still  think  I  was  right. 

Mr.  BLACK. — I  was  not  aware  that  any  judge  had  ever  doubted 


504  FORENSIC. 

upon  the  point,  and  I  do  not  see  how  he  could  dissent  from  your  con 
clusion  if  he  saw  your  reasons.  It  is  apparent  that  you  have  convinced 
the  opposing  counsel,  much  against  their  will — certainly  against  their 
interests — and  a  judgment  which  silences  them  ought  to  be  very  satis 
factory  to  others. 

The  argumentum  ad  hominem  has  been  tried  upon  us.  It  is  said 
that  the  defendants  were  sued,  or  threatened  with  a  suit,  in  1856,  for 
making  shoes  and  boots,  and  they  compromised  without  pleading  or 
producing  this  license.  The  fact  is  true,  and  I  hope  I  can  give  a  satis 
factory  reason  for  the  refusal  of  my  clients  to  defend  against  that  suit 
under  this  license.  They  were  too  honest  to  make  a  defense  which  they 
believed  to  be  false.  They  knew  that  a  license  to  manufacture  ja 
panned  cloths  was  not  a  license  to  make  shoes.  Our  distinguished 
opponents  must  have  felt  a  sore  need  of  arguments  before  they  could 
have  thought  of  resorting  to  this  one. 

The  truth  is  that  only  one  rational  ground  can  be  taken  against 
our  license.  There  is  but  one  fair  way  to  get  clear  of  it,  and  that  is 
to  sustain  Judge  Clifford's  construction  of  it,  and  show  that  it  means 
something  wholly  diiferent  from,  what  we  understand  it  to  mean.  If 
the  "japanned  cloths"  of  the  license  are  the  kind  of  goods  we  made, 
that  puts  an  end  to  all  controversy. 

Mr.  JUSTICE  CLIFFORD  expressed  his  assent  to  this. 

Mr.  BLACK. — I  am  glad  to  find  that,  in  your  honor's  mind,  as  well 
as  in  my  own,  the  dimensions  of  the  question  are  narrow  and  simple. 
When  you  come  to  review  yourself,  I  know  with  what  alacrity  you  will 
embrace  what  you  see  to  be  the  truth. 

Let  me  ask  you,  then,  to  look  carefully  at  this  license.  It  is  a 
most  important  paper  to  the  parties,  and  it  deserves  your  close  and 
serious  attention.  It  is  dated  in  1846  ;  it  is  in  proper  form  ;  it  is  un 
deniably  authentic ;  it  is  a  license  from  Goodyear,  the  patentee,  to 
Chaffee,  one  of  the  defendants,  and  his  assigns,  authorizing  him  and 
them,  for  a  consideration  therein  expressed,  to  use  the  invention  of 
Goodyear  in  the  manufacture  of  certain  goods.  What  goods  ? 

We  do  not  assert — we  have  never  asserted — that  the  license  is  uni 
versal.  It  is  limited.  But  within  the  limits  it  is  clear  and  unambig 
uous.  It  does  certainly  give  to  the  licensee  and  his  assigns  a  full  and 
complete  right  to  use  the  invention  of  the  patentee  to  cover  cloths 
with  vulcanized  rubber.  We  can  cover  nothing  but  woven  fabrics 
called  cloths  ;  not  shoes  or  wooden-ware  or  metallic  substances.  And 
it  does  not  include  all  cloths,  but  only  such  as  shall  be  so  covered  for 
the  purpose  of  being  japanned.  But  if  they  are  japanned,  they  may 
be  of  any  color — plain,  marbled,  or  variegated — and  there  is  no  re 
striction  upon  the  size  or  shape  of  them.  They  may  have  any  form 
to  suit  the  market,  and  the  purchasers  may  use  them  for  anything 
they  like — to  cover  tables,  pianos,  or  carriages ;  for  firemen's  capes, 


FORENSIC.  505 

soldiers'  blankets,  ponchos,  or  shelter-tents.  I  have  stated  the  true 
legal  effect  of  the  license  ;  you  can  not  give  it  any  other  effect  without 
interpolating  into  the  contract  what  the  parties  did  not  put  and  never 
meant  to  put  there.  It  is  perfectly  certain  that  Goodyear  desired  his 
invention  to  be  used  as  extensively  as  possible  for  making  japanned 
cloths,  and  of  course  he  wanted  the  cloths,  when  made,  to  be  used  for 
all  the  purposes  to  which  they  could  be  made  applicable.  This  was 
equally  the  interest  of  both  parties.  If  it  had  been  expressed  in  am 
biguous  terms,  the  licensees  would  be  entitled  to  the  benefit  of  the 
doubt,  upon  the  familiar  rule  of  interpretation,  which  requires  that 
all  private  deeds  shall  be  construed  most  strongly  in  favor  of  the 
grantee.  It  remains,  therefore,  only  to  consider,  whether  the  goods 
we  are  sued  for  making  are  japanned  cloths  or  not. 

It  is  not  denied  that  our  use  of  the  invention  consists  in  covering 
cloths  with  vulcanized  rubber.  It  is  equally  undeniable  that  these 
cloths  thus  covered  are  varnished,  so  as  to  give  them  a  smooth,  glossy, 
lustrous  surface ;  about  this  there  is  no  dispute.  They  prove  it,  and 
we  prove  it,  and  nobody  denies  it.  We  say  that  cloths  thus  made, 
covered,  and  finished  are  japanned,  and  here  we  are  met  by  a  flat 
contradiction  ;  our  opponents  assert  that  this  is  not  japanning.  The 
question  ought  to  be  a  simple  one  and  easily  decided. 

In  the  first  place,  we  think  we  can  safely  rely  on  your  knowledge 
of  the  English  language,  as  spoken  in  this  country,  for  a  just  inter 
pretation  of  the  word  in  question.  You  know  that  in  common  par 
lance  a  thing  japanned  is  one  which  has  a  very  smooth,  bright  surface, 
and  is  so  called  because  it  resembles  the  wares  imported  into  this 
country  and  Europe  from  Japan.  You  are  also  well  enough  ac 
quainted  with  the  mechanic  arts  to  know  that  the  kind  of  surface 
called  "japanned  "  can  be  produced  only  by  putting  a  varnish  on  it. 
If  you  know  this  I  need  not  tell  you  that  our  cloths  are  japanned, 
for  they  have  the  lustrous  surface  produced  by  skillful  varnishing. 

But  if  you  are  not  willing  to  rely  on  your  own  unassisted  knowl 
edge  of  words  and  things,  look  at  the  dictionaries.  Webster  defines 
japanning  just  as  we  do  —  producing  a  highly  polished  surface,  by 
means  of  varnish,  after  the  manner  of  the  Japanese.  Worcester 
makes  it  the  mere  synonym  of  varnishing. 

If  this  be  not  satisfactory,  take  the  highest  kind  of  scientific  au 
thority.  The  "National  Cyclopaedia"  (London,  1849)  describes  the 
art,  gives  its  history,  shows  forth  the  modes  of  its  practice,  and  ac 
counts  for  the  word  which  designates  it :  A  japanned  article  always 
has  a  lustrous  surface,  which  is  always  produced  by  applying  var 
nish  ;  there  is  no  other  means  of  producing  it  either  in  Europe, 
Japan,  China,  Siam,  Burmah,  or  elsewhere,  so  far  as  known.  The 
"Encyclopaedia  Americana"  gives  a  similar  but  not  so  detailed  an  ac 
count.  All  authorities  concur  in  saying  that  varnishing  is  japanning. 


506  FORENSIC. 

But  perhaps  this  is  not  sufficient.  Then  look  at  the  evidence  of 
the  experts.  Seven  witnesses,  of  unimpeachable  character  and  well 
versed  in  the  business,  come  forward  and  swear  that  our  cloths  are  ja 
panned,  because  they  are  varnished ;  that  japanning  means  varnish 
ing  and  nothing  else  ;  that  in  fact  the  word  japanning  has  been  dis 
placed  to  a  great  extent  by  the  terms  varnishing  and  lustering,  which 
signify  the  same  thing.  One  solitary  man  is  produced  on  the  other 
side  who  says  that  our  cloths  are  not  japanned.  He  does  not  deny 
that  they  have  the  glossy  surface  of  japanned  ware,  and  he  admits 
they  are  varnished ;  but  he  says  they  are  not  japanned  because,  for 
sooth,  we  do  not  put  the  varnish  on  the  rubber  cloth  as  he  puts  it  on 
calf-skin  when  he  makes  patent  leather  !  The  idiot  who  could  make 
such  a  statement,  and  give  such  a  reason  for  it,  is  the  only  authority 
our  opponents  have  for  asserting  that  our  manufacture  is  not  inside 
of  the  license. 

Besides  all  this,  we  have  proved  the  contemporaneous  construction 
which  the  license  received  from  the  parties  themselves.  Immediately 
after  its  date  Chaffee  began  the  manufacture  of  japanned  cloths  at 
JSTaugatuck.  He  japanned  them — he  gave  them  a  varnished  surface. 
Goodyear  was  there  and  saw  it  done,  and  recognized  that  as  the  art 
which  he  had  described  in  the  license  as  japanning.  He  not  only 
made  no  objection  to  such  a  manufacture  under  the  license,  but  he 
besought  the  licensee  to  continue  it  when  his  losses  admonished  him 
to  quit.  Not  only  did  Goodyear  acknowledge  this  to  be  the  true 
meaning  of  the  license,  but  the  Naugatuck  Company,  under  whom 
the  plaintiffs  claim,  made  the  same  admission.  That  corporation 
aided  and  assisted  Chaffee  in  making  varnished  cloths  —  varnished 
blankets — under  this  license ;  and  now  the  plaintiffs  assert  that  the 
license  does  not  protect  him  or  his  assignees,  when  they  are  doing  the 
same  thing.  I  insist  on  it  that  they  are  estopped  to  deny  now  what 
the  party  they  claim  under  admitted  then.  But  I  do  not  care  about 
using  the  argument  in  that  way ;  the  point  I  take  is  too  strong  on 
other  grounds  to  need  it. 

This  evidence  that  all  parties  regarded  varnished  cloths  as  ja 
panned,  within  the  meaning  of  the  license,  immediately  after  its  date, 
has  made  a  powerful  impression  on  our  adversaries.  They  have  done 
their  utmost  to  resist  r  it.  But  their  utmost  amounts  to  very  little. 
They  contend  that,  inasmuch  as  the  varnish  was  put  on  the  cloth  at 
Naugatuck  after  the  rubber  was  on  and  vulcanized,  and  at  Provi 
dence  the  rubber  and  the  varnish  were  put  on  together,  before  either 
was  heated,  therefore,  the  cloth  was  not  japanned,  that  is  to  say,  not 
varnished  at  all,  at  the  latter  place.  This  mode  of  reasoning  they 
must  have  learned  from  that  curious,  and  somewhat  hardy,  witness 
who  swore  that  varnishing  was  not  varnishing  unless  the  varnish  was 
put  on  leather  and  cloth  in  exactly  the  same  way. 


FORENSIC.  507 

You  can  not  make  even  a  superficial  investigation  of  this  art  of 
japanning  without  learning  that  the  word  applies  to  all  kinds  of  var 
nishing,  where  the  object  is  to  produce  a  highly  polished  and  lustrous 
surface,  whether  upon  metal,  wood,  paper,  rubber,  or  leather  ;  and  no 
matter  what  previous  preparation  may  have  been  made  for  the  recep 
tion  of  the  varnish.  The  modes  of  doing  it  are  infinitely  various,  but 
it  is  all  japanning. 

This  license  is  not  open  to  any  question  of  construction  ;  it  re 
quires  no  interpretation.  It  means  what  it  says.  It  does  not  speak 
in  an  unknown  tongue  ;  it  is  not  ambiguous  in  its  terms.  It  does  not 
"palter  with  us  in  a  double  sense."  It  has  no  hidden  signification 
which  needs  to  be  spelled  out  or  conjectured.  The  plain,  obvious, 
and  undoubted  import  of  its  words  is  to  give  us  the  privilege  of  mak 
ing  any  amount  of  varnished  rubber  cloths,  paying  to  Goodyear  three 
cents  per  yard  as  royalty  or  tariff.  We  have  shown  this  by  an  appeal 
to  your  own  knowledge  of  the  language  ;  by  the  dictionaries  and  the 
encyclopaedias  ;  by  the  testimony  of  every  sensible  and  intelligent  wit 
ness,  and  by  the  acts  of  all  the  parties.  In  the  face  of  all  this  our 
adversaries  have  the  boldness  to  say  that  we  manufacture  these  var 
nished  or  japanned  cloths  without  a  license. 

But  there  is  one  consideration  which  seems  perfectly  conclusive  : 
this  license  to  make  japanned  cloths  means  something.  If  we  are 
mistaken  about  it,  give  us  the  true  intent.  If  the  words  are  not  to  be 
understood  in  their  popular  sense,  or  according  to  their  definition  in 
the  dictionaries  and.  books  of  science,  or  agreeably  to  the  acceptation  of 
them  by  men  engaged  in  the  trade,  I  demand  to  know  how  they  are  to 
be  taken.  If  the  license  does  not  authorize  the  use  of  Goodyear's  inven 
tion  to  make  cloths  with  a  highly  varnished  surface,  such  as  the  de 
fendants  are  sued  for  making,  tell  us  what  it  does  authorize.  It  will 
not  do  to  say  it  has  no  meaning  at  all,  for  that  would  be  a  gross  viola 
tion  of  the  rule  quoted  with  so  much  approbation  by  Judge  Clifford, 
that  every  instrument  must  be  so  construed,  ut  res  magis  valeat 
quam  pereat.  There  never  lived  two  men  less  likely  than  Goodyear 
and  Chaffee  to  make  an  insensible  and  absurd  paper  on  any  subject 
connected  with  the  rubber  business  ;  for  they  had  devoted  their  lives 
to  it ;  they  had  studied  it  as  men  seldom  study  anything  ;  both  had 
made  it  the  subject  of  their  contemplation  by  day  and  night  for  many 
years.  But  our  opponents  leave  you  no  alternative  except  to  under 
stand  the  license  as  we  understand  it,  or  else  treat  it  as  wholly  unin 
telligible  and  meaningless.  You  are  compelled  to  say  either  that  we 
had  a  good  license,  which  justified  every  act  we  did,  or  else  that  Good 
year  and  Chaffee  did  not  know  what  they  were  about  when  they 
made  it. 

No  party,  counselor  or  witness,  on  the  side  of  the  plaintiffs,  has 
dared  to  bring  forward  a  definition  or  description  of  japanning  which 


508  FORENSIC. 

differs  from  ours.  They  can  say,  easily  enough,  that  ours  is  wrong  ; 
but  what  is  right  ?  A  specific  truth,  established  by  authority,  and 
resting  upon  common  sense,  is  not  to  be  overthrown  by  an  empty 
negative  ;  the  light  can  not  be  extinguished  by  pouring  darkness  upon 
it.  In  a  question  of  art  or  physical  science  the  ignorance  which  con 
fesses  its  inability  to  define  one  of  its  commonest  terms  is  not  entitled 
to  the  weight  of  a  feather  in  the  judicial  scale.  The  solitary  witness 
who  did  not  know  what  the  license  meant  is  but  a  sorry  match  for  the 
half-dozen  of  intelligent  gentlemen  who  did  know. 

V.  I  might  say  much,  but  I  will  say  only  a  little  on  the  question 
of  damages.  I  have  three  reasons  for  this  :  (1)  I  must  hasten  to  a 
close  ;  (2)  This  matter  has  been  fully  argued  already  ;  and  (3)  I  can 
not  believe  that  you  will  ever  reach  this  part  of  the  case.  It  can  not 
be  that  you  will  give  any  damages  in  a  suit  founded  upon  a  patent 
which  was  extended  by  fraud  and  corruption,  cut  into  halves  by  the 
owners  for  the  purpose  of  overstating  the  claim,  and  with  each  of 
the  halves  claiming  more  than  the  whole  of  the  invention.  If  you 
could  allow  such  a  party  on  such  evidence  to  recover  at  all,  you  surely 
could  not  permit  him  to  get  damages  from  a  defendant  who  holds  a 
clear,  plain  license  like  ours.  But  still  I  wish  to  justify  myself  for 
the  strong  statement  I  have  made  against  the  magnitude  of  this  de 
cree. 

There  were  three  different  inventions  used  in  the  manufacture  of 
these  cloths  :  Hayward's,  for  the  compound  of  rubber  and  sulphur ; 
Chaffee's,  for  the  machine  which  made  the  mixture  ;  and  Goodyear's, 
for  cooking  it.  Each  was  equally  indispensable.  All  of  them  had 
been  patented  and  all  the  patents  had  expired.  But  the  patent  for 
Goodyear's  had  been  extended.  Is  he  entitled  to  recover  all  the  profits 
made  by  the  use  of  all  these  inventions  ?  Certainly  he  could  recover 
only  his  own  if  the  others  had  also  been  extended.  Congress  and  the 
Patent-Office  refused  to  extend  them,  for  the  expressed  reason  that  the 
public  had  already  paid  for  them,  and  manufacturers  were  fairly  en 
titled  to  use  them  without  paying  again.  But  this  decree  bases  itself 
on  a  principle  which  totally  defeats  the  known  intentions  of  Congress. 
The  public  is  not  relieved,  but  the  refusal  of  an  extension  to  Hayward 
inures  to  the  benefit  of  Goodyear  ;  and  Chaffee  can  not  use  his  own 
invention  without  Goodyear's  permission.  The  decree,  in  effect,  says 
that  the  expiration  of  the  other  two  did  not  extinguish  the  exclusive 
rights  of  the  patentees,  and  make  their  inventions  common  property, 
but  merely  operated  as  a  transfer  of  those  rights  to  Goodyear's  assign 
ees.  I  beg  your  honors  to  consider  if  this  be  right ;  and  if  it  be,  tell 
us  how  it  may  be  vindicated  so  as  to  make  it  acceptable  to  the  minds 
of  fair  men,  who  are  not  sufficiently  skilled  in  dialectics  to  compre 
hend  the  justice  of  it  without  your  help.  I  am  particularly  anxious 


FORENSIC.  509 

that  my  client,  Colonel  Brown,  who  is  a  patriot  soldier  and  a  good 
Christian  gentleman,  should  understand  this  point.  If  he  is  compelled 
to  pay  hundreds  of  thousands  of  dollars  for  the  use  of  expired  patents 
because  these  greedy  cormorants  got  another  one  extended  by  fraud, 
he  ought  to  know  why,  and  it  is  somebody's  duty  to  tell  him. 

Another  thing  :  one  of  the  patents  sued  on  is  admitted  to  be  void. 
Why  should  we  be  compelled  to  pay  for  that  ?  You  may  answer  :  be 
cause  the  inventions  covered  by  these  two  patents  are  so  connected 
that  the  infringement  of  one  is  necessarily  an  infringement  of  the 
other  ;  one  can  not  be  used  without  using  both.  Be  it  so.  I  admit 
that  to  be  true.  But  it  proves  that  there  can  be  no  recovery  on  either, 
for  it  shows  that  they  are  not  for  separate  and  distinct  inventions, 
and  therefore  both  are  void.  Here  we  have  our  learned  opponents  on 
the  horns  of  a  dilemma.  If  they  have  two  patents  for  two  distinct 
and  separate  parts  of  an  invention,  and  they  recover  on  one  but  not 
on  the  other,  their  legal  and  equitable  right  to  at  least  one  half  of 
the  damages  is  gone  hopelessly ;  for,  if  the  inventions  are  distinct, 
so  are  the  infringements  and  the  damages.  If,  on  the  other  hand, 
they  say  the  two  patents  are  for  one  invention,  and  the  damages  can 
not  be  separated,  then  both  are  void,  and  their  whole  claim  is  over 
board. 

The  rule  of  damages  seems  to  be  plain  enough.  The  principle  is 
well  settled  that  the  patentee  is  entitled  only  to  compensation.  He 
can  not  recover  vindictive  or  exemplary  damages.  Where  the  patent 
ee  is  not  himself  engaged  in  using  the  invention,  he  is  injured  by 
an  infringer  only  to  the  extent  of  what  he  has  lost  by  missing  the  sale 
of  a  license.  In  a  case  like  this,  a  patentee  should  have  what  a  fair 
man  would  have  been  willing  to  take  for  the  use  of  his  invention,  so 
far  as  it  is  covered  by  a  sound  patent.  Assuming  the  one  patent  in 
this  case  to  be  properly  sustained  by  the  Circuit  Court,  the  decree, 
instead  of  giving  damages  for  all  three  of  the  inventions,  should  have 
ascertained  what  was  lost  by  the  infringement  of  half  a  one.  The 
damages  are  at  least  six  times  as  large  as  they  ought  to  be  if  the  court 
was  right  in  everything  else. 

But  the  court  not  only  made  us  pay  for  three  inventions,  but  the 
damages  were  greatly  increased  by  counting  against  us,  and  awarding 
to  the  plaintiffs,  all  that  we  made  as  merchants  by  the  purchase  of 
goods  which  afterward  rose  in  the  market.  What  this  had  to  do  with 
the  patent  right,  or  why  we  should  account  for  profits  so  made,  it  is 
impossible  to  see. 

I  will  say  nothing  on  the  other  exceptions,  for  I  do  not  wish  to  re 
peat  what  was  so  impressively  said  by  Mr.  Payne  and  Mr.  Cushing.  I 
will  make  no  reply  to  the  merry  remarks  of  Mr.  Evarts  and  Mr. 
Stoughton  on  the  compensation  claimed  by  the  defendants  for  their 
labor.  That  part  of  the  argument  of  my  learned  friends,  considered 


510  FORENSIC. 

merely  as  wit  and  eloquence,  was  a  splendid  success  ;  but  it  lacked 
logic  and  law  most  sadly. 

I  repeat  my  conviction  (which  is  also  that  of  my  colleagues)  that 
the  master's  report  was  confirmed  by  a  kind  of  default,  for  want  of 
convenient  time  to  consider  it  or  to  hear  it  discussed.  The  judge  knew 
it  would  come  here,  at  all  events,  and  he  preferred  to  examine  it  along 
with  his  brethren. 

But  the  plaintiffs  had  full  swing  before  the  master.  They  got 
whatever  they  chose  to  demand.  They  swelled  the  report  in  every 
possible  way,  and  in  some  ways  that  might  have  been  thought  impos 
sible.  It  sprung  out  of  nothing,  but  it  grew  into  proportions  of  pro 
digious  magnitude.  Nothing  like  it  has  ever  been  seen  in  this  class 
of  cases.  Mammoth  decrees  have  been  made  before,  but  this  one 
"upheaves  its  vastness"  like  the  huge  " behemoth,  biggest  born  of 
earth." 

I  am  conscious  that  all  this  discussion  about  damages  is  a  waste  of 
time.  There  will  be  no  damages.  The  fraud  in  the  extension  is 
fatal ;  the  separation  of  the  invention  destroyed  it  ;  the  overclaim 
made  both  patents  void,  and  our  license  is  as  complete  and  perfect  a 
defense  as  any  court  ever  saw. 

And  now,  if  you  are  as  tired  of  listening  as  I  am  of  speaking,  you 
will  be  glad  to  hear  me  say  that  I  am  done. 


IN  DEFENSE  OF  THE  EIGHT  TO  TRIAL  BY  JURY.—  EX- 
PARTE  MILLIGAN. 

SUPREME  COURT  OF  THE  UNITED  STATES. 

• 

"  THIS  defense  of  the  right  of  trial  by  jury  is  a  marvelous  display  of  Judge 
Black's  extraordinary  power  and  abilities  as  a  lawyer,  and  the  enduring  im 
portance  of  the  subject  will  render  it  interesting  as  long  as  the  individual  lib 
erty  of  the  citizen  shall  be  preserved  as  part  of  the  framework  of  human  gov 
ernment.  It  was  delivered  during  a  period  of  great  political  excitement,  before 
the  passions  and  prejudices  stirred  up  by  the  greatest  civil  war  in  history  had 
been  allayed.  It  affected  the  destiny  of  one  whose  crimes  were  aimed  at 
the  destruction  of  the  Government  itself,  and  the  public  desire  to  see  the  sen 
tence  of  the  commission  executed  was  very  general.  Since  the  anger  and  ex 
citement  of  the  times  have  passed  away,  and  the  great  questions  involved  in 
this  case  present  themselves  in  their  true  aspect  and  importance,  the  argument 
of  Judge  Black  becomes  conspicuous  as  a  defense  of  the  dearest  rights  of  the 
citizen,  and  stands  like  a  monument  to  which  the  eyes  of  mankind  will  turn  in 
the  hour  when  their  rights  are  assailed.  It  will  be  admired  by  the  student  as  a 
comprehensive  exposition  of  the  fundamental  principles  upon  which  the  law  of 
civil  liberty  depends,  and  the  causes  which  led  to  their  perfection  and  adoption 


FORENSIC.  511 

under  our  system.  The  subject  loses  the  dry,  tedious  detail  of  a  legal  argu 
ment,  and  becomes  animated  with  the  spirit  and  genius  of  the  speaker,  while 
presenting  a  review  of  the  struggle  between  freedom  and  arbitrary  power  which 
the  world  has  witnessed  for  centuries.  It  will  be  considered  precious  by  per 
sons  in  every  walk  of  life,  for  it  defines  in  a  masterly  manner  the  natural  rights 
guaranteed  to  each  individual  by  the  organic  law,  and  its  importance  in  this 
respect  clothes  it  with  the  heritage  of  immortality." — "  Great  Speeches  ~by  Great 
Lawyers,"  Baker,  Voorhis  &  Co. 

May  it  please  your  Honors : 

I  am  not  afraid  that  you  will  underrate  the  importance  of  this  case. 
It  concerns  the  rights  of  the  whole  people.  Such  questions  have  gen 
erally  been  settled  by  arms.  But  since  the  beginning  of  the  world  no 
battle  has  ever  been  lost  or  won  upon  which  the  liberties  of  a  nation 
were  so  distinctly  staked  as  they  are  on  the  result  of  this  argument. 
The  pen  that  writes  the  judgment  of  the  court  will  be  mightier  for 
good  or  for  evil  than  any  sword  that  ever  was  wielded  by  mortal 
arm. 

As  might  be  expected  from  the  nature  of  the  subject,  it  has  been 
a  good  deal  discussed  elsewhere,  in  legislative  bodies,  in  public  assem 
blies,  and  in  the  newspaper  press  of  the  country.  But  there  it  has  been 
mingled  with  interests  and  feelings  not  very  friendly  to  a  correct 
conclusion.  Here  we  are  in  a  higher  atmosphere,  where  no  passion 
can  disturb  the  judgment  or  shake  the  even  balance  in  which  the 
scales  of  reason  are  held.  Here  it  is  purely  a  judicial  question  ;  and 
I  can  speak  for  my  colleagues  as  well  as  myself  when  I  say  that  we 
have  no  thought  to  suggest  which  we  do  not  suppose  to  be  a  fair 
element  in  the  strictly  legal  judgment  which  you  are  required  to 
make  up. 

In  performing  the  duty  assigned  to  me  in  the  case,  I  shall  neces 
sarily  refer  to  the  mere  rudiments  of  .constitutional  law  ;  to  the  most 
commonplace  topics  of  history,  and  to  those  plain  rules  of  justice  and 
right  which  pervade  all  our  institutions.  I  beg  your  honors  to  believe 
that  this  is  not  done  because  I  think  that  the  court,  or  any  member  of 
it,  is  less  familiar  with  these  things  than  I  am,  or  less  sensible  of  their 
value  ;  but  simply  and  only  because,  according  to  my  view  of  the  sub 
ject,  there  is  absolutely  no  other  way  of  dealing  with  it.  If  the  fun 
damental  principles  of  American  liberty  are  attacked,  and  we  are 
driven  behind  the  inner  walls  of  the  Constitution  to  defend  them,  we 
can  repel  the  assault  only  with  those  same  old  weapons  which  our  an 
cestors  used  a  hundred  years  ago.  You  must  not  think  the  worse  of 
our  armor  because  it  happens  to  be  old-fashioned  and  looks  a  little 
rusty  from  long  disuse. 

The  case  before  you  presents  but  a  single  point,  and  that  an  exceed 
ingly  plain  one.  It  is  not  encumbered  with  any  of  those  vexed  ques 
tions  that  might  be  expected  to  arise  out  of  a  great  war.  You  are  not 


512  FORENSIC. 

called  upon  to  decide  what  kind  of  rule  a  military  commander  may 
impose  upon  the  inhabitants  of  a  hostile  country  which  he  occupies  as 
a  conqueror,  or  what  punishment  he  may  inflict  upon  the  soldiers  of 
his  own  army  or  the  followers  of  his  camp  ;  or  yet  how  he  may  deal 
with  civilians  in  a  beleaguered  city  or  other  place  in  a  state  of  actual 
siege,  which  he  is  required  to  defend  against  a  public  enemy.  This 
contest  covers  no  such  ground  as  that.  The  men  whose  acts  we  com 
plain  of  erected  themselves  into  a  tribunal  for  the  trial  and  punish 
ment  of  citizens  who  were  connected  in  no  way  whatever  with  the 
army  or  navy.  And  this  they  did  in  the  midst  of  a  community  whose 
social  and  legal  organization  had  never  been  disturbed  by  any  war  or 
insurrection,  where  the  courts  were  wide  open,  where  judicial  process 
was  executed  every  day  without  interruption,  and  where  all  the  civil 
authorities,  both  State  and  national,  were  in  full  exercise  of  their 
functions. 

My  clients  were  dragged  before  this  strange  tribunal,  and  after  a 
proceeding,  which  it  would  be  mere  mockery  to  call  a  trial,  they  were 
ordered  to  be  hung.  The  charge  against  them  was  put  into  writing 
and  is  found  on  this  record,  but  you  will  not  be  able  to  decipher  its 
meaning.  The  relators  were  not  accused  of  treason ;  for  no  act  is 
imputed  to  them  which,  if  true,  would  come  within  the  definition  of 
that  crime.  It  was  not  conspiracy  under  the  act  of  1861 ;  for  all  con 
cerned  in  this  business  must  have  known  that  conspiracy  was  not  a 
capital  offense.  If  the  commissioners  were  able  to  read  English,  they 
could  not  help  but  see  that  it  was  made  punishable,  even  by  fine  and 
imprisonment,  only  upon  condition  that  the  parties  should  first  be 
convicted  before  a  Circuit  or  District  Court  of  the  United  States.  The 
Judge- Advocate  must  have  meant  to  charge  them  with  some  offense 
unknown  to  the  laws,  which  he  chose  to  make  capital  by  legislation  of 
his  own,  and  the  commissioners  were  so  profoundly  ignorant  as  to 
think  that  the  legal  innocence  of  the  parties  made  no  difference  in  the 
case.  I  do  not  say,  what  Sir  James  Mackintosh  said  of  a  similar  pro 
ceeding,  that  the  trial  was  a  mere  conspiracy  to  commit  willful  mur 
der  upon  three  innocent  men.  The  commissioners  are  not  on  trial ; 
they  are  absent  and  undefended  ;  and  they  are  entitled  to  the  benefit 
of  that  charity  which  presumes  them  to  be  wholly  unacquainted  with 
the  first  principles  of  natural  justice,  and  quite  unable  to  comprehend 
either  the  law  or  the  facts  of  a  criminal  cause. 

Keeping  the  character  of  the  charges  in  mind,  let  us  come  at  once 
to  the  simple  question  upon  which  the  court  below  divided  in  opinion  : 
Had  the  commissioners  jurisdiction — were  they  invested  with  legal 
authority  to  try  the  relators  and  put  them  to  death  for  the  offense  of 
which  they  were  accused  ?  We  answer,  No  ;  and  therefore  the  whole 
proceeding,  from  beginning  to  end,  was  utterly  null  and  void.  On  the 
other  hand,  it  is  absolutely  necessary  for  those  who  oppose  us  to  assert, 


FORENSIC.  513 

and  they  do  assert,  that  the  commissioners  had  complete  legal  juris 
diction,  both  of  the  suhject-matter  and  of  the  parties,  so  that  their 
judgment  upon  the  law  and  the  facts  is  absolutely  conclusive  and 
binding,  not  subject  .to  correction,  nor  open  to  inquiry  in  any  court 
whatever.  Of  these  two  opposite  views,  you  must  adopt  one  or 
the  other ;  for  there  is  no  middle  ground  on  which  you  can  possibly 
stand. 

I  need  not  say  (for  it  is  the  law  of  the  horn -books)  that  where  a 
court  (whatever  may  be  its  power  in  other  respects)  presumes  'to  try 
a  man  for  an  offense  of  which  it  has  no  right  to  take  judicial  cogni 
zance,  all  its  proceedings  in  that  case  are  null  and  void.  If  the  party 
is  acquitted,  he  can  not  plead  the  acquittal  afterward  in  bar  of  another 
prosecution  ;  if  he  is  found  guilty  and  sentenced,  he  is  entitled  to  ,be 
relieved  from  the  punishment.  If  a  Circuit  Court  of  the  United  States 
should  undertake  to  try  a  party  for  an  offense  clearly  within  the  exclu 
sive  jurisdiction  of  the  State  courts,  the  judgment  could  have  no  effect. 
If  a  county  court  in  the  interior  of  a  State  should  arrest  an  officer  of 
the  Federal  navy,  try  him,  and  order  him  to  be  hung  for  some  offense 
against  the  law  of  nations,  committed  upon  the  high  seas  or  in  a  for 
eign  port,  nobody  would  treat  such  a  judgment  otherwise  than  with 
mere  derision.  The  Federal  courts  have  jurisdiction  to  try  offenses 
against  the  laws  of  the  United  States,  and  the  authority  of  the  State 
courts  is  confined  to  the  punishment  of  acts  which  are  made  penal  by 
State  laws.  It  follows  that  where  the  accusation  does  not  amount  to 
an  offense  against  the  law  of  either  the  State  or  Federal  Government, 
no  court  can  have  jurisdiction  to  try  it.  Suppose,  for  example,  that 
the  judges  of  this  court  should  organize  themselves  into  a  tribunal  to 
try  a  man  for  witchcraft,  or  heresy,  or  treason  against  the  Confederate 
States  of  America,  would  anybody  say  that  your  judgment  had  the 
least  validity  ? 

I  care  not,  therefore,  whether  the  relators  were  intended  to  be 
charged  with  treason  or  conspiracy  or  with  some  offense  of  which  the 
law  takes  no  notice.  Either  or  any  way,  the  men  who  undertook  to 
try  them  had  no  jurisdiction  of  the  subject-matter. 

Nor  had  they  jurisdiction  of  the  parties.  It  is  not  pretended  that 
this  was  a  case  of  impeachment,  or  a  case  arising  in  the  land  or  naval 
forces.  It  is  either  nothing  at  all,  or  else  it  is  a  simple  crime  against 
the  United  States,  committed  by  private  individuals  not  in  the  public 
service,  civil  or  military.  Persons  standing  in  that  relation  to  the 
Government  are  answerable  for  the  offenses  which  they  may  commit 
only  to  the  civil  courts  of  the  country.  So  says  the  Constitution,  as 
we  read  it ;  and  the  act  of  Congress  of  March  3,  1863,  which  was  passed 
with  express  reference  to  persons  precisely  in  the  situation  of  these 
men,  declares  that  they  shall  be  delivered  up  for  trial  to  the  proper 
civil  authorities. 


514:  FORENSIC. 

There  being  no  jurisdiction  of  the  subject-matter  or  of  the  parties, 
you  are  bound  to  relieve  the  petitioners.  It  is  as  much  the  duty  of  a 
judge  to  protect  the  innocent  as  it  is  to  punish  the  guilty.  Suppose 
that  the  secretary  of  some  department  should  take  it  into  his  head  to 
establish  an  ecclesiastical  tribunal  here  in  the  city  of  Washington, 
composed  of  clergymen  "organized  to  convict"  everybody  who  prays 
after  a  fashion  inconsistent  with  the  supposed  safety  of  the  State.  If 
he  would  select  the  members  with  a  proper  regard  to  the  odium  theo- 
logicum,  I  think  I  could  insure  him  a  commission  that  would  hang 
every  man  and  woman  who  might  be  brought  before  it.  But  would 
you,  the  judges  of  the  land,  stand  by  and  see  their  sentences  executed  ? 
No  ;  you  would  interpose  your  writ  of  prohibition,  your  habeas  corpus, 
or  any  other  process  that  might  be  at  your  command,  between  them 
and  their  victims.  And  you  would  do  that  for  precisely  the  reason 
which  requires  your  intervention  here  :  because  religious  errors,  like 
political  errors,  are  not  crimes  which  anybody  in  this  country  has  juris 
diction  to  punish,  and  because  ecclesiastical  commissions,  like  military 
commissions,  are  not  among  the  judicial  institutions  of  this  people. 
Our  fathers  long  ago  cast  them  both  aside  among  the  rubbish  of  the 
Dark  Ages ;  and  they  intended  that  we,  their  children,  should  know 
them  only  that  we  might  blush  and  shudder  at  the  shameless  injustice 
and  the  brutal  cruelties  which  they  were  allowed  to  perpetrate  in  other 
times  and  other  countries. 

But  our  friends  on  the  other  side  are  not  at  all  impressed  with  these 
views.  Their  brief  corresponds  exactly  with  the  doctrines  propounded 
by  the  Attorney- General,  in  a  very  elaborate  official  paper  which  he 
published  last  July,  upon  this  same  subject.  He  then  avowed  it  to 
be  his  settled  and  deliberate  opinion  that  the  military  might  ' '  take 
and  kill,  try  and  execute  "  (I  use  his  own  words)  persons  who  had  no 
sort  of  connection  with  the  army  or  navy.  And,  though  this  be  done 
in  the  face  of  the  open  courts,  the  judicial  authority,  according  to 
him,  are  utterly  powerless  to  prevent  the  slaughter  which  may  thus 
be  carried  on.  That  is  the  thesis  which  the  Attorney-General  and  his 
assistant  counselors  are  to  maintain  this  day,  if  they  can  maintain  it, 
with  all  the  power  of  their  artful  eloquence. 

"We,  on  the  other  hand,  submit  that  a  person  not  in  the  military  or 
naval  service  can  not  be  punished  at  all  until  he  has  had  a  fair,  open, 
public  trial  before  an  impartial  jury,  in  an  ordained  and  established 
court,  to  which  the  jurisdiction  has  been  given  by  law  to  try  him  for 
that  specific  offense.  There  is  our  proposition.  Between  the  ground 
we  take  and  the  ground  they  occupy  there  is  and  there  can  be  no  com 
promise.  It  is  one  way  or  the  other. 

Our  proposition  ought  to  be  received  as  true  without  any  argument 
to  support  it ;  because  if  that,  or  something  precisely  equivalent  to  it, 
be  not  a  part  of  our  law,  this  is  not,  what  we  have  always  supposed  it 


FORENSIC.  515 

to  be,  a  free  country.  Nevertheless,  I  take  upon  myself  the  burden  of 
showing  affirmatively  not  only  that  it  is  true,  but  that  it  is  immovably 
fixed  in  the  very  framework  of  the  Government,  so  that  it  is  utterly 
impossible  to  detach  it  without  destroying  the  whole  political  struct 
ure  under  which  we  live.  By  removing  it  you  destroy  the  life  of  this 
nation  as  completely  as  you  would  destroy  the  life  of  an  individual  by 
cutting  the  heart  out  of  his  body.  I  proceed  to  the  proof. 

In  the  first  place,  the  self-evident  truth  will  not  be  denied  that  the 
trial  and  punishment  of  an  offender  against  the  Government  is  the 
exercise  of  judicial  authority.  That  is  a  kind  of  authority  which 
would  be  lost  by  being  diffused  among  the  masses  of  the  people.  A 
judge  would  be  no  judge  if  everybody  else  were  a  judge  as  well  as  he. 
Therefore  in  every  society,  however  rude  or  however  perfect  its  organ 
ization,  the  judicial  authority  is  always  committed  to  the  hands  of 
particular  persons,  who  are  trusted  to  use  it  wisely  and  well ;  and 
their  authority  is  exclusive ;  they  can  not  share  it  with  others  to 
whom  it  has  not  been  committed.  Where,  then,  is  the  judicial  power 
in  this  country  ?  Who  are  the  depositaries  of  it  here  ?  The  Federal 
Constitution  answers  that  question  in  very  plain  words,  by  declaring 
that  "  the  judicial  power  of  the  United  States  shall  be  vested  in  one 
Supreme  Court,  and  in  such  inferior  courts  as  Congress  may  from 
time  to  time  ordain  and  establish."  Congress  has,  from  time  to  time, 
ordained  and  established  certain  inferior  courts  ;  and  in  them,  to 
gether  with  the  one  Supreme  Court  to  which  they  are  subordinate,  is 
vested  all  the  judicial  power,  properly  so  called,  which  the  United 
States  can  lawfully  exercise.  That  was  the  compact  made  with  the 
General  Government  at  the  time  it  was  created.  The  States  and  the 
people  agreed  to  bestow  upon  that  Government  a  certain  portion  of 
the  judicial  power,  which  otherwise  would  have  remained  in  their  own 
hands,  but  gave  it  on  a  solemn  trust,  and  coupled  the  grant  of  it  with 
this  express  condition  that  it  should  never  be  used  in  any  way  but  one  ; 
that  is,  by  means  of  ordained  and  established  courts.  Any  person, 
therefore,  who  undertakes  to  exercise  judicial  power  in  any  other  way 
not  only  violates  the  law  of  the  land,  but  he  treacherously  tramples 
upon  the  most  important  part  of  that  sacred  covenant  which  holds 
these  States  together. 

May  it  please  your  honors,  you  know,  and  I  know,  and  everybody 
else  knows,  that  it  was  the  intention  of  the  men  who  founded  this 
Republic  to  put  the  life,  liberty,  and  property  of  every  person  in  it 
under  the  protection  of  a  regular  and  permanent  judiciary,  separate, 
apart,  distinct,  from  all  other  branches  of  the  Government,  whose  sole 
and  exclusive  business  it  should  be  to  distribute  justice  among  the 
people  according  to  the  wants  of  each  individual.  It  was  to  consist  of 
courts,  always  open  to  the  complaint  of  the  injured,  and  always  ready 
to  hear  criminal  accusations  when  founded  upon  probable  cause  ;  sur- 


516  FORENSIC. 

rounded  with  all  the  machinery  necessary  for  the  investigation  of 
truth,  and  clothed  with  sufficient  power  to  carry  their  decrees  into 
execution.  In  these  courts  it  was  expected  that  judges  would  sit  who 
would  be  upright,  honest,  and  sober  men,  learned  in  the  laws  of  their 
country,  and  lovers  of  justice  from  the  habitual  practice  of  that  vir 
tue  ;  independent,  because  their  salaries  could  not  be  reduced ;  and 
free  from  party  passion,  because  their  tenure  of  office  was  for  life.  Al 
though  this  would  place  them  above  the  clamors  of  the  mere  mob  and 
beyond  the  reach  of  Executive  influence,  it  was  not  intended  that 
they  should  be  wholly  irresponsible.  For  any  willful  or  corrupt  vio 
lation  of  their  duty,  they  are  liable  to  be  impeached  ;  and  they  can 
not  escape  the  control  of  an  enlightened  public  opinion,  for  they  must 
sit  with  open  doors,  listen  to  full  discussion,  and  give  satisfactory 
reasons  for  the  judgments  they  pronounce.  In  ordinary  tranquil 
times  the  citizen  might  feel  himself  safe  under  a  judicial  system  so 
organized. 

But  our  wise  forefathers  knew  that  tranquillity  was  not  to  be 
always  anticipated  in  a  republic ;  the  spirit  of  a  free  people  is  often 
turbulent.  They  expected  that  strife  would  rise  between  classes  and 
sections,  and  even  civil  war  might  come,  and  they  supposed  that  in 
such  times  judges  themselves  might  not  be  safely  trusted  in  criminal 
cases — especially  in  prosecutions  for  political  offenses,  where  the  whole 
power  of  the  Executive  is  arrayed  against  the  accused  party.  All  his 
tory  proves  that  public  officers  of  any  Government,  when  they  are 
engaged  in  a  severe  struggle  to  retain  their  places,  become  bitter  and 
ferocious,  and  hate  those  who  oppose  them,  even  in  the  most  legiti 
mate  way,  with  a  rancor  which  they  never  exhibit  toward  actual  crime. 
This  kind  of  malignity  vents  itself  in  prosecutions  for  political  of 
fenses,  sedition,  conspiracy,  libel,  and  treason,  and  the  charges  are 
generally  founded  upon  the  information  of  hireling  spies  and  common 
delators,  who  make  merchandise  of  their  oaths,  and  trade  in  the  blood 
of  their  fellow-men.  During  the  civil  commotions  in  England,  which 
lasted  from  the  beginning  of  the  reign  of  Charles  I  to  the  revolution 
of  1688,  the  best  men  and  the  purest  patriots  that  ever  lived  fell  by 
the  hand  of  the  public  executioner.  Judges  were  made  the  instru 
ments  for  inflicting  the  most  merciless  sentences  on  men  the  latchet 
of  whose  shoes  the  ministers  that  prosecuted  them  were  not  worthy  to 
stoop  down  and  unloose.  Let  me  say  here,  that  nothing  has  occurred 
in  the  history  of  this  country  to  justify  the  doubt  of  judicial  integrity 
which  our  forefathers  seem  to  have  felt.  On  the  contrary,  the  highest 
compliment  that  has  ever  been  paid  to  the  American  bench  is  em 
bodied  in  this  simple  fact  :  that  if  the  Executive  officers  of  this  Gov 
ernment  have  ever  desired  to  take  away  the  life  or  the  liberty  of  a 
citizen  contrary  to  law,  they  have  not  come  into  the  courts  to  ,get  it 
done  ;  they  have  gone  outside  of  the  courts,  and  stepped  over  the 


FORENSIC.  517 

Constitution,  and  created  their  own  tribunals,  composed  of  men  whose 
gross  ignorance  and  supple  subservience  could  always  be  relied  on 
for  those  base  uses  to  which  no  judge  would  ever  lend  himself.  But 
the  framers  of  the  Constitution  could  act  only  upon  the  experience  of 
that  country  whose  history  they  knew  most  about,  and  there  they  saw 
the  brutal  ferocity  of  Jeffreys  and  Scroggs,  the  timidity  of  Guilford, 
and  the  base  venality  of  such  men  as  Saunders  and  Wright.  It 
seemed  necessary,  therefore,  not  only  to  make  the  judiciary  as  perfect 
as  possible,  but  to  give  the  citizen  yet  another  shield  against  the 
wrath  and  malice  of  his  Government.  To  that  end  they  could 
think  of  no  better  provision  than  a  public  trial  before  an  impartial 
jury. 

I  do  not  assert  that  the  jury  trial  is  an  infallible  mode  of  ascer 
taining  truth.  Like  everything  human,  it  has  its  imperfections.  I 
only  say  that  it  is  the  best  protection  for  innocence,  and  the  surest 
mode  of  punishing  guilt,  that  has  yet  been  discovered.  It  has  borne 
the  test  of  a  longer  experience,  and  borne  it  better  than  any  other 
legal  institution  that  ever  existed  among  men.  England  owes  more 
of  her  freedom,  her  grandeur,  and  her  prosperity  to  that,  than  to  all 
other  causes  put  together.  It  has  had  the  approbation  not  only  of 
those  who  lived  under  it,  but  of  great  thinkers  who  looked  at  it  calm 
ly  from  a  distance,  and  judged  it  impartially  :  Montesquieu  and  De 
Tocqueville  speak  of  it  with  an  admiration  as  rapturous  as  Coke  and 
Blackstone.  Within  the  present  century,  the  most  enlightened  states 
of  Continental  Europe  have  transplanted  it  into  their  countries ;  and 
no  people  ever  adopted  it  once  and  were  afterward  willing  to  part 
with  it.  It  was  only  in  1830  that  an  interference  with  it  in  Belgium 
provoked  a  successful  insurrection  which  permanently  divided  one 
kingdom  into  two.  In  the  same  year,  the  revolution  of  the  Barricades 
gave  the  right  of  trial  by  jury  to  every  Frenchman. 

Those  colonists  of  this  country  who  came  from  the  British  Islands 
brought  this  institution  with  them,  and  they  regarded  it  as  the  most 
precious  part  of  their  inheritance.  The  immigrants  from  other  places, 
where  trial  by  jury  did  not  exist,  became  equally  attached  to  it  as  soon 
as  they  understood  what  it  was.  There  was  no  subject  upon  which 
all  the  inhabitants  of  the  country  were  more  perfectly  unanimous 
than  they  were  in  their  determination  to  maintain  this  great  right 
unimpaired.  An  attempt  was  made  to  set  it  aside,  and  substitute 
military  trials  in  its  place,  by  Lord  Dunmore  in  Virginia,  and  Gen 
eral  Gage  in  Massachusetts,  accompanied  with  the  excuse,  which  has 
been  repeated  so  often  in  late  days,  namely,  that  rebellion  had  made 
it  necessary  ;  but  it  excited  intense  popular  anger,  and  every  colony, 
from  New  Hampshire  to  Georgia,  made  common  cause  with  the  two 
whose  rights  had  been  especially  invaded.  Subsequently  the  Conti 
nental  Congress  thundered  it  into  the  ear  of  the  world,  as  an  unen- 


518  FORENSIC. 

durable  outrage,  sufficient  to  justify  universal  insurrection  against  the 
authority  of  the  Government  which  had  allowed  it  to  be  done. 

If  the  men  who  fought  out  our  revolutionary  contest,  when  they 
came  to  frame  a  government  for  themselves  and  their  posterity,  had 
failed  to  insert  a  provision  making  the  trial  by  jury  perpetual  and 
universal,  they  would  have  covered  themselves  all  over  with  infamy 
as  with  a  garment ;  for  they  would  have  proved  themselves  basely 
recreant  to  the  principles  of  that  very  liberty  of  which  they  professed 
to  be  the  special  champions.  But  they  were  guilty  of  no  such  treach 
ery.  They  not  only  took  care  of  the  trial  by  jury,  but  they  regulated 
every  step  to  be  taken  in  a  criminal  trial.  They  knew  very  well  that 
no  people  could  be  free  under  a  government  which  had  the  power  to 
punish  without  restraint.  Hamilton  expressed  in  the  "Federalist" 
the  universal  sentiment  of  his  time  when  he  said  that  the  arbitrary 
power  of  conviction  and  punishment  for  pretended  offenses  had  been 
the  great  engine  of  despotism  in  all  ages  and  all  countries.  The  ex 
istence  of  such  a  power  is  utterly  incompatible  with  freedom.  The 
difference  between  a  master  and  his  slave  consists  only  in  this :  that 
the  master  holds  the  lash  in  his  hands,  and  he  may  use  it  without 
legal  restraint,  while  the  naked  back  of  the  slave  is  bound  to  take 
whatever  is  laid  on  it. 

But  our  fathers  were  not  absurd  enough  to  put  unlimited  power  in 
the  hands  of  the  ruler,  and  take  away  the  protection  of  law  from  the 
rights  of  individuals.  It  was  not  thus  that  they  meant  "to  secure 
the  blessings  of  liberty  to  themselves  and  their  posterity."  They  de 
termined  that  not  one  drop  of  the  blood  which  had  been  shed  on  the 
other  side  of  the  Atlantic,  during  seven  centuries  of  contest  with  arbi 
trary  power,  should  sink  into  the  ground ;  but  the  fruits  of  every 
popular  victory  should  be  garnered  up  in  this  new  Government.  Of 
all  the  great  rights  already  won  they  threw  not  an  atom  away.  They 
went  over  Magna  Charta,  the  Petition  of  Rights,  the  Bill  of  Rights, 
and  the  rules  of  the  common  law,  and  whatever  was  found  there  to 
favor  individual  liberty  they  carefully  inserted  in  their  own  system, 
improved  by  clearer  expression,  strengthened  by  heavier  sanctions,  and 
extended  by  a  more  universal  application.  They  put  all  those  pro 
visions  into  the  organic  law,  so  that  neither  tyranny  in  the  Executive 
nor  party  rage  in  the  Legislature  could  change  them  without  destroy 
ing  the  Government  itself. 

Look  for  a  moment  at  the  particulars,  and  see  how  carefully  every 
thing  connected  with  the  administration  of  punitive  justice  is  guarded. 

1.  No  ex  post  facto  law  shall  be  passed.     No  man  shall  be  answer 
able  criminally  for  any  act  which  was  not  defined  and  made  punishable 
as  a  crime  by  some  law  in  force  at  the  time  when  the  act  was  done. 

2.  For  an  act  which  is  criminal  he  can  not  be  arrested  without  a 
judicial  warrant  founded  on  proof  of  probable  cause.     He  shall  not  be 


FORENSIC.  519 

kidnapped  and  shut  up  on  the  mere  report  of  some  base  spy,  who  gath 
ers  the  materials  of  a  false  accusation  by  crawling  into  his  house  and 
listening  at  the  key-hole  of  his  chamber-door. 

3.  He  shall  not  be  compelled  to  testify  against  himself.     He  may 
be  examined   before  he  is  committed,  and  tell  his  own  story  if  he 
pleases ;  but  the  rack  shall  be  put  out  of  sight,  and  even  his  conscience 
shall  not  be  tortured ;  nor  shall  his    unpublished  papers  be  used 
against  him,  as  was  done  most  wrongfully  in  the  case  of  Algernon 
Sidney. 

4.  He  shall  be  entitled  to  a  speedy  trial ;  not  kept  in  prison  for 
an  indefinite  time  without  the  opportunity  of  vindicating  his  inno 
cence. 

5.  He  shall  be  informed  of  the  accusation,  its  nature,  and  grounds. 
The  public  accuser  must  put  the  charge  into  the  form  of  a  legal  in 
dictment,  so  that  the  party  can  meet  it  full  in  the  face. 

6.  Even  to  the  indictment  he  need  not  answer  unless  a  grand  jury, 
after  hearing  the  evidence,  shall  say  upon  their  oaths  that  they  be 
lieve  it  to  be  true. 

7.  Then  comes  the  trial,  and  it  must  be  before  a  regular  court,  of 
competent  jurisdiction,  ordained  and  established  for  the  State  and 
district  in  which  the  crime  was  committed ;  and  this  shall  not  be 
evaded  by  a  legislative  change  in  the  district  after  the  crime  is  alleged 
to  be  done. 

8.  His  guilt  or  innocence  shall  be  determined  by  an  impartial  jury. 
These  English  words  are  to  be  understood  in  their  English  sense,  and 
they  mean  that  the  jurors  shall  be  fairly  selected  by  a  sworn  officer 
from  among  the  peers  of  the  party,  residing  within  the  local  jurisdic 
tion  of  the  court.     "When  they  are  called  into  the  box  he  can  purge 
the  panel  of  all  dishonesty,  prejudice,  personal  enmity,  and  ignorance, 
by  a  certain  number  of  peremptory  challenges,  and  as  many  more 
challenges  as  he  can  sustain  by  showing  reasonable  cause. 

9.  The  trial  shall  be  public  and  open,  that  no  underhand  advan 
tage  may  be  taken.     The  party  shall  be  confronted  with  the  witnesses 
against  him,  have  compulsory  process  for  his  own  witnesses,  and  be 
entitled  to  the  assistance  of  counsel  in  his  defense. 

10.  After  the  evidence  is  heard  and  discussed,  unless  the  jury  shall, 
upon  their  oaths,  unanimously  agree  to  surrender  him  up  into  the 
hands  of  the  court  as  a  guilty  man,  not  a  hair  of  his  head  can  be 
touched  by  way  of  punishment. 

11.  After  a  verdict  of  guilty  he  is  still  protected.     No  cruel  or 
unusual  punishment  shall  be  inflicted,  nor  any  punishment  at  all, 
except  what  is  annexed  by  the  law  to  his  offense.      It  can  not  be 
doubted  for  a  moment  that,  if  a  person  convicted  of  an  offense  not 
capital  were  to  be  hung  on  the  order  of  a  judge,  such  judge  would  be 
guilty  of  murder,  as  plainly  as  if  he  should  come  down  from  the  bench, 


520  FORENSIC. 

tuck  up  the  sleeves  of  his  gown,  and  let  out  the  prisoner's  blood  with 
his  own  hand. 

12.  After  all  is  over,  the  law  continues  to  spread  its  guardianship 
around  him.  Whether  he  is  acquitted  or  condemned,  he  shall  never 
again  be  molested  for  that  offense.  No  man  shall  be  twice  put  in 
jeopardy  of  life  or  limb  for  the  same  cause. 

These  rules  apply  to  all  criminal  prosecutions.  But,  in  addition 
to  these,  certain  special  regulations  were  required  for  treason — the  one 
great  political  charge  under  which  more  innocent  men  have  fallen 
than  any  other.  A  tyrannical  government  calls  everybody  a  traitor 
who  shows  the  least  unwillingness  to  be  a  slave.  The  party  in  power 
never  fails,  when  it  can,  to  stretch  the  law  on  that  subject  by  con 
struction,  so  as  to  cover  its  honest  and  conscientious  opponents.  In 
the  absence  of  a  constitutional  provision,  it  was  justly  feared  that  stat 
utes  might  be  passed  which  would  put  the  lives  of  the  most  patriotic 
citizens  at  the  mercy  of  the  basest  minions  that  skulk  about  under  the 
pay  of  the  Executive.  Therefore  a  definition  of  treason  was  given  in 
the  fundamental  law,  and  the  legislative  authority  could  not  enlarge 
it  to  serve  the  purpose  of  partisan  malice.  The  nature  and  amount 
of  evidence  required  to  prove  the  crime  was  also  prescribed,  so  that 
prejudice  and  enmity  might  have  no  share  in  the  conviction.  And, 
lastly,  the  punishment  was  so  limited  that  the  property  of  the  party 
could  not  be  confiscated,  and  used  to  reward  the  agents  of  his  perse 
cutors,  or  strip  his  family  of  their  subsistence. 

If  these  provisions  exist  in  full  force,  unchangeable  and  irrepeal- 
able,  then  we  are  not  hereditary  bondsmen.  Every  citizen  may  safely 
pursue  his  lawful  calling  in  the  open  day  ;  and  at  night,  if  he  is  con 
scious  of  innocence,  he  may  lie  down  in  security  and  sleep  the  sound 
sleep  of  a  freeman. 

I  say  they  are  in  force,  and  they  will  remain  in  force.  We  have 
not  surrendered  them,  and  we  never  will.  If  the  worst  comes  to  the 
worst  we  will  look  to  the  living  God  for  his  help,  and  defend  our 
rights  and  the  rights  of  our  children  to  the  last  extremity.  Those 
men  who  think  we  can  be  subjected  and  abjected  to  the  condition  of 
mere  slaves  are  wholly  mistaken.  The  great  race  to  which  we  belong 
has  not  degenerated  so  fatally. 

But  how  am  I  to  prove  the  existence  of  these  rights  ?  I  do  not 
propose  to  do  it  by  a  long  chain  of  legal  argumentation,  nor  by  the 
production  of  numerous  books  with  the  leaves  dog-eared  and  the 
pages  marked.  If  it  depended  upon  judicial  precedents,  I  think  I 
could  produce  as  many  as  might  be  necessary.  If  I  claimed  this  free 
dom,  under  any  kind  of  prescription,  I  could  prove  a  good  long  pos 
session  in  ourselves  and  those  under  whom  we  claim  it.  I  might  begin 
with  Tacitus  and  show  how  the  contest  arose  in  the  forests  of  Germany 
more  than  two  thousand  years  ago  ;  how  the  rough  virtues  and  sound 


FORENSIC.  521 

common  sense  of  that  people  established  the  right  of  trial  by  jury,  and 
thus  started  on  a  career  which  has  made  their  posterity  the  foremost 
-race  that  ever  lived  in  all  the  tide  of  time.  The  Saxons  carried  it  to 
England,  and  were  ever  ready  to  defend  it  with  their  blood.  It  was 
crushed  out  by  the  Danish  invasion ;  and  all  that  they  suffered  of 
tyranny  and  oppression  during  the  period  of  their  subjugation  resulted 
from  the  want  of  trial  by  jury.  If  that  had  been  conceded  to  them, 
the  reaction  would  not  have  taken  place  which  drove  back  the  Danes 
to  their  frozen  homes  in  the  north.  But  those  ruffian  sea-kings  could 
not  understand  that,  and  the  reaction  came.  Alfred,  the  greatest  of 
revolutionary  heroes,  and  the  wisest  monarch  that  ever  sat  on  a  throne, 
made  the  first  use  of  his  power,  after  the  Saxons  restored  ib,  to  re-es 
tablish  their  ancient  laws.  He  had  promised  them  that  he  would,  and 
he  was  true  to  them,  because  they  had  been  true  to  him.  But  it  was 
not  easily  done ;  the  courts  were  opposed  to  it,  for  it  limited  their 
power — a  kind  of  power  that  everybody  covets — the  power  to  punish 
without  regard  to  law.  He  was  obliged  to  hang  forty-four  judges  in 
one  year  for  refusing  to  give  his  subjects  a  trial  by  jury.  When  the 
historian  says  that  he  hung  them,  it  is  not  meant  that  he  put  them  to 
death  without  a  trial.  He  had  them  impeached  before  the  grand 
council  of  the  nation,  the  Wittenagemote,  the  parliament  of  that 
time.  During  the  subsequent  period  of  Saxon  domination  no  man  on 
English  soil  was  powerful  enough  to  refuse  a  legal  trial  to  the  meanest 
peasant.  If  any  minister,  or  any  king,  in  war  or  in  peace,  had  dared 
to  punish  a  freeman  by  a  tribunal  of  his  own  appointment,  he  would 
have  roused  the  wrath  of  the  whole  population  ;  all  orders  of  society 
would  have  resisted  it ;  lord  and  vassal,  knight  and  squire,  priest  and 
penitent,  bocman  and  socman,  master  and  thrall,  copy-holder  and  vil 
lein,  would  have  risen  in  one  mass  and  burned  the- offender  to  death  in 
his  castle,  or  followed  him  in  his  flight  and  torn  him  to  atoms.  It 
was  again  trampled  down  by  the  Norman  conquerors  ;  but  the  evils 
resulting  from  the  want  of  it  united  all  classes  in  the  effort  which  com 
pelled  King  John  to  restore  it  by  the  Great  Charter.  Everybody  is 
familiar  with  the  struggles  which  the  English  people,  during  many 
generations,  made  for  their  rights  with  the  Plantagenets,  the  Tudors, 
and  the  Stuarts,  and  which  ended  finally  in  the  revolution  of  1688, 
when  the  liberties  of  England  were  placed  upon  an  impregnable  basis 
by  the  Bill  of  Eights. 

Many  times  the  attempt  was  made  to  stretch  the  royal  authority 
far  enough  to  justify  military  trials  ;  but  it  never  had  more  than  tem 
porary  success.  Five  hundred  years  ago  Edward  II  closed  up  a  great 
rebellion  by  taking  the  life  of  its  leader,  the  Earl  of  Lancaster, 
after  trying  him  before  a  military  court.  Eight  years  later  that 
same  king,  together  with  his  lords  and  commons  in  Parliament  as 
sembled,  acknowledged  with  shame  and  sorrow  that  the  execution  of 


522  FORENSIC. 

Lancaster  was  a  mere  murder,  because  the  courts  were  open  and  he 
might  have  had  a  legal  trial.  Queen  Elizabeth,  for  sundry  reasons 
affecting  the  safety  of  the  State,  ordered  that  certain  offenders  not  of 
her  army  should  be  tried  according  to  the  law  martial.  But  she  heard 
the  storm  of  popular  vengeance  rising,  and,  haughty,  imperious,  self- 
willed  as  she  was,  she  yielded  the  point ;  for  she  knew  that  upon  that 
subject  the  English  people  would  never  consent  to  be  trifled  with. 
Strafford,  as  Lord-Lieutenant  of  Ireland,  tried  the  Viscount  Stormont 
before  a  military  commission.  When  impeached  for  it,  he  pleaded  in 
vain  that  Ireland  was  in  a  state  of  insurrection,  that  Stormont  was  a 
traitor,  and  the  army  would  be  undone  if  it  could  not  defend  itself 
without  appealing  to  the  civil  courts.  The  Parliament  was  deaf  ;  the 
king  himself  could  not  save  him  ;  he  was  condemned  to  suffer  death  as 
a  traitor  and  a  murderer.  Charles  I  issued  commissions  to  divers  offi 
cers  for  the  trial  of  his  enemies  according  to  the  course  of  military 
law.  If  rebellion  ever  was  an  excuse  for  such  an  act,  he  could  surely 
have  pleaded  it ;  for  there  was  scarcely  a  spot  in  his  kingdom,  from 
sea  to  sea,  where  the  royal  authority  was  not  disputed  by  somebody. 
Yet  the  Parliament  demanded  in  their  petition  of  right,  and  the 
king  was  obliged  to  concede,  that  all  his  commissions  were  illegal. 
James  II  claimed  the  right  to  suspend  the  operation  of  the  penal  laws 
— a  power  which  the  courts  denied  ;  but  the  experience  of  his  prede 
cessors  taught  him  that  he  could  not  suspend  any  man's  right  to  a 
trial.  He  could  easily  have  convicted  the  seven  bishops  of  any  offense 
he  saw  fit  to  charge  them  with,  if  he  could  have  selected  their  judges 
from  among  the  mercenary  creatures  to  whom  he  had  given  commands 
in  his  army.  But  this  he  dared  not  do.  He  was  obliged  to  send 
the  bishops  to  a  jury  and  endure  the  mortification  of  seeing  them  ac 
quitted.  He,  too,  might  have  had  rebellion  for  an  excuse,  if  rebellion 
be  an  excuse.  The  conspiracy  was  already  ripe,  which  a  few  months  af 
terward  made  him  an  exile  and  an  outcast  ;  he  had  reason  to  believe 
that  the  Prince  of  Orange  was  making  his  preparations  011  the  other 
side  of  the  channel  to  invade  the  kingdom,  where  thousands  burned  to 
join  him  ;  nay,  he  pronounced  the  bishops  guilty  of  rebellion  by  the 
very  act  for  which  he  arrested  them.  He  had  raised  an  army  to  meet 
the  rebellion,  and  he  was  on  Hounslow  Heath,  reviewing  the  troops  or 
ganized  for  that  purpose,  when  he  heard  the  great  shout  of  joy  that 
went  up  from  Westminster  Hall,  was  echoed  back  from  Templar  Bar, 
spread  down  the  city  and  over  the  Thames,  and  rose  from  every  vessel 
on  the  river — the  simultaneous  shout  of  two  hundred  thousand  men 
for  the  triumph  of  justice  and  law. 

If  it  were  worth  the  time,  I  might  detain  you  by  showing  how  this 
subject  was  treated  by  the  French  Court  of  Cassation,  in  Geoffrey's 
case,  under  the  Constitution  of  1830,  when  a  military  judgment  was 
unhesitatingly  pronounced  to  be  void,  though  ordered  by  the  king, 


FORENSIC.  523 

after  a  proclamation  declaring  Paris  in  a  state  of  siege.  Fas  est  db 
hoste  doceri :  we  may  lawfully  learn  something  from  our  enemies — at 
all  events,  we  should  blush  at  the  thought  of  not  being  equal  on  such 
a  subject  to  the  courts  of  Virginia,  Georgia,  Mississippi,  and  Texas, 
whose  decisions,  my  colleague,  General  Garfield,  has  read  and  com 
mented  on. 

The  truth  is,  that  no  authority  exists  anywhere  in  the  world  for 
the  doctrine  of  the  Attorney-General.  No  judge  or  jurist,  no  statesman 
or  parliamentary  orator,  on  this  or  the  other  side  of  the  water,  sus 
tains  him.  Every  elementary  writer  from  Coke  to  Wharton  is  against 
him.  All  military  authors,  who  profess  to  know  the  duties  of  their 
profession,  admit  themselves  to  be  under,  not  above,  the  laws.  No 
book  can  be  found  in  any  library  to  justify  the  assertion  that  mili 
tary  tribunals  may  try  a  citizen  at  a  place  where  the  courts  are  open. 
When  I  say  no  book,  I  mean,  of  course,  no  book  of  acknowledged  au 
thority.  I  do  not  deny  that  hireling  clergymen  have  often  been 
found  to  disgrace  the  pulpit  by  trying  to  prove  the  divine  right  of 
kings  and  other  rulers  to  govern  as  they  please.  It  is  true,  also,  that 
court  sycophants  and  party  hacks  have  many  times  written  pamphlets, 
and  perhaps  large  volumes,  to  show  that  those  whom  they  serve  should 
be  allowed  to  work  out  their  bloody  will  upon  the  people.  No  abuse 
of  power  is  too  flagrant  to  find  its  defenders  among  such  servile  creat 
ures.  Those  butchers'  dogs,  that  feed  upon  garbage  and  fatten  upon 
the  offal  of  the  shambles,  are  always  ready  to  bark  at  whatever  inter 
feres  with  the  trade  of  their  master. 

But  this  case  does  not  depend  on  authority.  It  is  rather  a  question 
of  fact  than  of  law. 

I  prove  my  right  to  a  trial  by  jury,  just  as  I  would  prove  my  title 
to  an  estate  if  I  held  in  my  hand  a  solemn  deed  conveying  it  to  me, 
coupled  with  undeniable  evidence  of  long  and  undisturbed  possession 
under  and  according  to  the  deed.  There  is  the  charter  by  which  we 
claim  to  hold  it.  It  is  called  the  Constitution  of  the  United  States. 
It  is  signed  by  the  sacred  name  of  George  Washington,  and  by  thirty- 
nine  other  names,  only  less  illustrious  than  his.  They  represented 
every  independent  State  then  upon  this  continent,  and  each  State  af 
terward  ratified  their  work  by  a  separate  convention  of  its  own  people. 
Every  State  that  subsequently  came  in  acknowledged  that  this  was 
the  great  standard  by  which  their  rights  were  to  be  measured.  Every 
man  that  has  ever  held  office  in  this  country,  from  that  time  to  this, 
has  taken  an  oath  that  he  would  support  and  sustain  it  through  good 
report  and  through  evil.  The  Attorney-General  himself  became  a 
party  to  the  instrument  when  he  laid  his  hand  upon  the  Gospel  of 
God  and  solemnly  swore  that  he  would  give  to  me  and  every  other  cit 
izen  the  full  benefit  of  all  it  contains. 

What  does  it  contain  ?    This  among  other  things  : 


524  FORENSIC. 

"  The  trial  of  all  crimes  except  in  cases  of  impeachment  shall  be 
by  jury." 

Again  :  "  No  person  shall  be  held  to  answer  for  a  capital  or  other 
wise  infamous  crime  unless  on  a  presentment  or  indictment  of  a  grand 
jury,  except  in  cases  arising  in  the  land  and  naval  forces,  or  in  the 
militia  when  in  actual  service  in  time  of  war  or  public  danger  ;  nor 
shall  any  person  be  subject  fdr  the  same  offense  to  be  twice  put  in 
jeopardy  of  life  or  limb,  nor  be  compelled  in  any  criminal  case  to  be  a 
witness  against  himself,  nor  be  deprived  of  life,  liberty,  or  property 
without  due  process  of  law ;  nor  shall  private  property  be  taken  for 
public  use  without  just  compensation." 

This  is  not  all ;  another  article  declares  that  "  in  all  criminal  pros 
ecutions  the  accused  shall  enjoy  the  right  to  a  speedy  and  public  trial, 
by  an  impartial  jury  of  the  State  and  district  wherein  the  crime  shall 
have  been  committed,  which  district  shall  have  been  previously  ascer 
tained  by  law ;  and  to  be  informed  of  the  nature  and  cause  of  the 
accusation  ;  to  be  confronted  with  the  witnesses  against  him  ;  to  have 
compulsory  process  for  the  witnesses  in  his  favor,  and  to  have  the 
assistance  of  counsel  for  his  defense." 

Is  there  any  ambiguity  there  ?  If  that  does  not  signify  that  a  jury 
trial  shall  be  the  exclusive  and  only  means  of  ascertaining  guilt  in 
criminal  cases,  then  I  demand  to  know  what  words  or  what  collocation 
of  words  in  the  English  language  would  have  that  effect  ?  Does  this 
mean  that  a  fair,  open,  speedy,  public  trial  by  an  impartial  jury  shall 
be  given  only  to  those  persons  against  whom  no  special  grudge  is  felt 
by  the  Attorney-General,  or  the  Judge- Advocate,  or  the  head  of  a  de 
partment  ?  Shall  this  inestimable  privilege  be  extended  only  to  men 
whom  the  administration  does  not  care  to  convict  ?  Is  it  confined  to 
vulgar  criminals,  who  commit  ordinary  crimes  against  society,  and 
shall  it  be  denied  to  men  who  are  accused  of  such  offenses  as  those  for 
which  Sidney  and  Eussell  were  beheaded,  and  Alice  Lisle  was  hung, 
and  Elizabeth  Gaunt  was  burned  alive,  and  John  Bunyan  was  im 
prisoned  fourteen  years,  and  Baxter  was  whipped  at  the  cart's-tail,  and 
Prynn  had  his  ears  cut  off  ?  No  ;  the  words  of  the  Constitution  are 
all-embracing — 

"  As  broad. and  general  as  the  casing  air." 

The  trial  of  ALL  crimes  shall  be  by  jury.  ALL  persons  accused 
shall  enjoy  that  privilege — and  NO  person  shall  be  held  to  answer  in 
any  other  way. 

That  would  be  sufficient  without  more.  But  there  is  another  con 
sideration  which  gives  it  tenfold  power.  It  is  a  universal  rule  of  con 
struction,  that  general  words  in  any  instrument,  though  they  may  be 
weakened  by  enumeration,  are  always  strengthened  by  exceptions. 
Here  is  no  attempt  to  enumerate  the  particular  cases  in  which  men 


FORENSIC.  525 

charged  with  criminal  offenses  shall  be  entitled  to  a  jury  trial.  It  is 
simply  declared  that  all  shall  have  it.  But  that  is  coupled  with  a 
statement  of  two  specific  exceptions  :  cases  of  impeachment,  and 
cases  arising  in  the  land  or  naval  forces.  These  exceptions  strengthen 
the  application  of  the  general  rule  to  all  other  cases.  Where  the  law 
giver  himself  has  declared  when  and  in  what  circumstances  you  may 
depart  from  the  general  rule,  you  shall  not  presume  to  leave  that  on 
ward  path  for  other  reasons,  and  make  different  exceptions.  To  ex 
ceptions,  the  maxim  is  always  applicable,  that  expressio  unius-exclusio 
est  alterius. 

But  we  are  answered  that  the  judgment  under  consideration  was 
pronounced  in  time  of  war,  and  it  is  therefore,  at  least  morally,  ex 
cusable.  There  may,  or  there  may  not  be  something  in  that.  I  admit 
that  the  merits  or  demerits  of  any  particular  act,  whether  it  involve  a 
violation  of  the  Constitution  or  not,  depend  upon  the  motives  that 
prompted  it,  the  time,  the  occasion,  and  all  the  attending  circum 
stances.  "When  the  people  of  this  country  come  to  decide  upon  the  acts 
of  their  rulers,  they  will  take  all  these  things  into  consideration.  But 
that  presents  the  political  aspect  of  the  case,  with  which,  I  trust,  we 
have  nothing  to  do  here.  I  decline  to  discuss  it.  I  would  only  say, 
in  order  to  prevent  misapprehension,  that  I  think  it  is  precisely  in  a 
time  of  war  and  civil  commotion  that  we  should  double  the  guards 
upon  the  Constitution.  If  the  sanitary  regulations  which  defend  the 
health  of  a  city  are  ever  to  be  relaxed,  it  ought  certainly  not  to  be 
done  when  pestilence  is  abroad.  When  the  Mississippi  shrinks  within 
its  natural  channel,  and  creeps  lazily  along  the  bottom,  the  inhabit 
ants  of  the  adjoining  shore  have  no  need  of  a  dike  to  save  them  from 
inundation.  But  when  the  booming  flood  comes  down  from  above, 
and  swells  into  a  volume  which  rises  high  above  the  plain  on  either 
side,  then  a  crevasse  in  the  levee  becomes  a  most  serious  thing.  So 
in  peaceable  and  quiet  times  our  legal  rights  are  in  little  danger  of 
being  overborne  ;  but  when  the  wave  of  arbitrary  power  lashes  itself 
into  violence  and  rage,  and  goes  surging  up  against  the  barriers  which 
were  made  to  confine  it,  then  we  need  the  whole  strength  of  an  un 
broken  Constitution  to  save  us  from  destruction.  But  this  is  a  ques 
tion  which  properly  belongs  to  the  jurisdiction  of  the  stump  and  the 
newspaper. 

There  is  another  quasi-political  argument — necessity.  If  the  law 
was  violated  because  it  could  not  be  obeyed,  that  might  be  an  excuse. 
But  no  absolute  compulsion  is  pretended  here.  These  commissioners 
acted,  at  most,  under  what  they  regarded  as  a  moral  necessity.  The 
choice  was  left  them  to  obey  the  law  or  disobey  it.  The  disobedience 
was  only  necessary  as  means  to  an  end  which  they  thought  desirable  ; 
and  now  they  assert  that  though  these  means  are  unlawful  and  wrong, 
they  are  made  right,  because  without  them  the  object  could  not  be 


526  FORENSIC. 

accomplished ;  in  other  words,  the  end  justifies  the  means.  There 
you  have  a  rule  of  conduct  denounced  by  all  law,  human  and  divine, 
as  being  pernicious  in  policy  and  false  in  morals.  See  how  it  applies 
to  this  case.  Here  were  three  men  whom  it  was  desirable  to  remove 
out  of  this  world,  but  there  was  no  proof  on  which  any  court  would 
take  their  lives  ;  therefore  it  was  necessary,  and  being  necessary  it  was 
right  and  proper,  to  create  an  illegal  tribunal  which  would  put  them 
to  death  without  proof.  By  the  same  mode  of  reasoning  you  can 
prove  it  equally  right  to  poison  them  in  their  food,  or  stab  them  in 
their  sleep. 

Nothing  that  the  worst  men  ever  propounded  has  produced  so 
much  oppression,  misgovernment,  and  suffering  as  this  pretense  of 
State  necessity.  A  great  authority  calls  it  "the  tyrant's  devilish 
plea "  ;  and  the  common  honesty  of  all  mankind  has  branded  it  with 
everlasting  infamy. 

Of  course,  it  is  mere  absurdity  to  say  that  these  relators  were  neces 
sarily  deprived  of  their  right  to  a  fair  and  legal  trial,  for  the  record 
shows  that  a  court  of  competent  jurisdiction  was  sitting  at  the  very 
time  and  in  the  same  town,  where  justice  would  have  been  done  with 
out  sale,  denial,  or  delay.  But  concede,  for  the  argument's  sake,  that 
a  trial  by  jury  was  wholly  impossible  ;  admit  that  there  was  an  abso 
lute,  overwhelming,  imperious  necessity  operating  so  as  literally  to 
compel  every  act  which  the  commissioners  did  :  would  that  give  their 
sentence  of  death  the  validity  and  force  of  a  legal  judgment  pro 
nounced  by  an  ordained  and  established  court  ?  The  question  answers 
itself.  This  trial  was  a  violation  of  law,  and  no  necessity  could  be 
more  than  a  mere  excuse  for  those  who  committed  it.  If  the  commis 
sioners  were  on  trial  for  murder  or  conspiracy  to  murder,  they  might 
plead  necessity  if  the  fact  were  true,  just  as  they  would  plead  insanity 
or  anything  else  to  show  that  their  guilt  was  not  willful.  But  we  are 
now  considering  the  legal  effect  of  their  decision,  and  that  depends  on 
their  legal  authority  to  make  it.  They  had  no  such  authority ;  they 
usurped  a  jurisdiction  which  the  law  not  only  did  not  give  them,  but 
expressly  forbade  them  to  exercise,  and  it  follows  that  their  act  is  void, 
whatever  may  have  been  the  real  or  supposed  excuse  for  it. 

If  these  commissioners,  instead  of  aiming  at  the  life  and  liberty  of 
the  relators,  had  attempted  to  deprive  them  of  their  property  by  a  sen 
tence  of  confiscation,  would  any  court  in  Christendom  declare  that 
such  a  sentence  divested  the  title  ?  Or  would  a  person  claiming  under 
the  sentence  make  his  right  any  better  by  showing  that  the  illegal  as 
sumption  of  jurisdiction  was  accompanied  by  some  excuse  which  might 
save  the  commissioners  from  a  criminal  prosecution  ? 

Let  me  illustrate  still  further.  Suppose  you,  the  judges  of  this 
court,  to  be  surrounded  in  the  hall  where  you  are  sitting  by  a  body  of 
armed  insurgents,  and  compelled  by  main  force  to  pronounce  sentence 


FORENSIC.  527 

of  death  upon  the  President  of  the  United  States  for  some  act  of  his 
upon  which  you  have  no  legal  authority  to  adjudicate.  There  would 
be  a  valid  sentence  if  necessity  alone  could  create  jurisdiction.  But 
could  the  President  be  legally  executed  under  it  ?  No  ;  the  compul 
sion  under  which  you  acted  would  be  a  good  defense  for  you  against 
an  impeachment  or  an  indictment  for  murder,  but  it  would  add  noth 
ing  to  the  validity  of  a  judgment  which  the  law  forbade  you  to  give. 

That  a  necessity  for  violating  the  law  is  nothing  more  than  a  mere 
excuse  to  the  perpetrator,  and  does  not  in  any  legal  sense  change  the 
quality  of  the  act  itself  in  its  operation  upon  other  parties,  is  a  propo 
sition  too  plain  on  original  principles  to  need  the  aid  of  authority.  I 
do  not  see  how  any  man  of  common  sense  is  to  stand  up  and  dispute 
it.  But  there  is  decisive  authority  upon  the  point.  In  1815,  at  New 
Orleans,  General  Jackson  took  upon  himself  the  command  of  every 
person  in  the  city,  suspended  the  functions  of  all  the  civil  authorities, 
and  made  his  own  will  for  a  time  the  only  rule  of  conduct.  It  was 
believed  to  be  absolutely  necessary.  Judges,  officers  of  the  city  cor 
poration,  and  members  of  the  State  Legislature  insisted  on  it  as  the 
only  way  to  save  the  "booty  and  beauty"  of  the  place  from  the  un 
speakable  outrages  committed  at  Badajos  and  St.  Sebastian  by  the  very 
same  troops  then  marching  to  the  attack.  Jackson  used  the  power 
thus  taken  by  him  moderately,  sparingly,  benignly,  and  only  for  the 
purpose  of  preventing  mutiny  in  his  camp.  A  single  mutineer  was 
restrained  by  a  short  confinement,  and  another  was  sent  four  miles  up 
the  river.  But,  after  he  had  saved  the  city,  and  the  danger  was  all 
over,  he  stood  before  the  court  to  be  tried  by  the  law ;  his  conduct  was 
decided  to  be  illegal  by  the  same  judge  who  had  declared  it  to  be  nec 
essary,  and  he  paid  the  penalty  without  a  murmur.  The  Supreme 
Court  of  Louisiana,  in  Johnson  vs.  Duncan,  decided  that  everything 
done  during  the  siege  in  pursuance  of  martial  rule,  but  in  conflict  with 
the  law  of  the  land,  was  void  and  of  none  effect,  without  reference  to 
the  circumstances  which  made  it  necessary.  Long  afterward  the  fine 
imposed  upon  Jackson  was  refunded,  because  his  friends,  while  they 
admitted  him  to  have  violated  the  law,  insisted  that  the  necessity 
which  drove  him  to  it  ought  to  have  saved  him  from  the  punishment 
due  only  to  a  willful  offender. 

The  learned  counsel  on  the  other  side  will  not  assert  that  there 
was  war  at  Indianapolis  in  1864,  for  they  have  read  "  Coke's  Institute," 
and  Judge  Grier's  opinion  in  the  prize  cases,  and  of  course  they  know 
it  to  be  a  settled  rule  that  war  can  not  be  said  to  exist  where  the  civil 
courts  are  open.  They  will  not  set  up  the  absurd  plea  of  necessity, 
for  they  are  well  aware  that  it  would  not  be  true  in  point  of  fact. 
They  will  hardly  take  the  ground  that  any  kind  of  necessity  could 
give  legal  validity  to  that  which  the  law  forbids. 

This,  therefore,  must  be  their  position  :  That  although  there  was 


528  FORENSIC. 

no  war  at  the  place  where  this  commission  sat,  and  no  actual  necessity 
for  it,  yet  if  there  was  a  war  anywhere  else,  to  which  the  United  States 
were  a  party,  the  technical  effect  of  such  war  was  to  take  the  jurisdic 
tion  away  from  the  civil  courts  and  transfer  it  to  army  officers. 

GENERAL  BUTLER. — We  do  not  take  that  position. 

Mr.  BLACK. — Then  they  can  take  no  ground  at  all,  for  nothing 
else  is  left.  I  do  not  wonder  to  see  them  recoil  from  their  own  doc 
trine  when  its  nakedness  is  held  up  to  their  eyes.  But  they  must 
stand  upon  that  or  give  up  their  cause.  They  may  not  state  their 
proposition  precisely  as  I  state  it ;  that  is  too  plain  a  way  of  putting 
it.  But,  in  substance,  it  is  their  doctrine — has  been  the  doctrine  of 
the  Attorney-General's  office  ever  since  the  advent  of  the  present  in 
cumbent — and  is  the  doctrine  of  their  brief,  printed  and  filed  in  this 
case.  What  else  can  they  say  ?  They  will  admit  that  the  Constitu 
tion  is  not  altogether  without  a  meaning ;  that  at  a  time  of  universal 
peace  it  imposes  some  kind  of  obligation  upon  those  who  swear  to  sup 
port  it.  If  no  war  existed  they  would  not  deny  the  exclusive  jurisdic 
tion  of  the  civil  courts  in  criminal  cases.  How,  then,  did  the  military 
get  jurisdiction  in  Indiana  ? 

All  men  who  hold  the  Attorney-General's  opinion  to  be  true,  an 
swer  the  question  I  have  put  by  saying  that  military  jurisdiction  comes 
from  the  mere  existence  of  war ;  and  it  comes  in  Indiana  only  as  the 
legal  result  of  a  war  which  is  going  on  in  Mississippi,  Tennessee,  or 
South  Carolina.  The  Constitution  is  repealed,  or  its  operation  sus 
pended,  in  one  State  because  there  is  war  in  another.  The  courts  are 
open,  the  organization  of  society  is  intact,  the  judges  are  on  the  bench, 
and  their  process  is  not  impeded  ;  but  their  jurisdiction  is  gone.  Why  ? 
Because,  say  our  opponents,  war  exists,  and  the  silent,  legal,  technical 
operation  of  that  fact  is  to  deprive  all  American  citizens  of  their  right 
to  a  fair  trial. 

That  class  of  jurists  and  statesmen,  who  hold  that  the  trial  by  jury 
is  lost  to  the  citizen  during  the  existence  of  war,  carry  out  their  doc 
trine  theoretically  and  practically  to  its  ultimate  consequences.  The 
right  of  trial  by  jury  being  gone,  all  other  rights  are  gone  with  it ; 
therefore  a  man  may  be  arrested  without  an  accusation,  and  kept  in 
prison  during  the  pleasure  of  his  captors  ;  his  papers  may  be  searched 
without  a  warrant ;  his  property  may  be  confiscated  behind  his  back, 
and  he  has  no  earthly  means  of  redress.  Nay,  an  attempt  to  get  a  just 
remedy  is  construed  as  a  new  crime.  He  dare  not  even  complain,  for 
the  right  of  free  speech  is  gone  with  the  rest  of  his  rights.  If  you 
sanction  that  doctrine,  what  is  to  be  the  consequence  ?  I  do  not  speak 
of  what  is  past  and  gone  ;  but  in  case  of  a  future  war,  what  results  will 
follow  from  your  decision  indorsing  the  Attorney-General's  views  ? 
They  are  very  obvious.  At  the  instant  when  the  war  begins,  our  whole 
system  of  legal  government  will  tumble  into  ruin,  and  if  we  are  not 


FORENSIC.  529 

all  robbed,  and  kidnapped,  and  hanged,  and  drawn,  and  quartered, 
we  will  owe  our  immunity,  not  to  the  Constitution  and  laws,  but  to 
the  mere  mercy  or  policy  of  those  persons  who  may  then  happen  to 
control  the  organized  physical  force  of  the  country. 

This  certainly  puts  us  in  a  most  precarious  condition  ;  we  must  have 
war  about  half  the  time,  do  what  we  may  to  avoid  it.  The  President 
or  Congress  can  wantonly  provoke  a  war  whenever  it  suits  the  purpose 
of  either  to  do  so  ;  and  they  can  keep  it  going  as  long  as  they  please, 
even  after  the  actual  conflict  of  arms  is  over.  When  Peace  woos 
them  they  can  ignore  her  existence ;  and  thus  they  can  make  war  a 
chronic  condition  of  the  country,  and  the  slavery  of  the  people  per 
petual.  Nay,  we  are  at  the  mercy  of  any  foreign  potentate  who  may 
envy  us  the  possession  of  those  liberties  which  we  boast  of  so  much  ; 
he  can  shatter  our  Constitution  without  striking  a  single  blow  or  bring 
ing  a  gun  to  bear  upon  us.  A  simple  declaration  of  hostilities  is  more 
terrible  to  us  than  an  army  with  banners. 

To  me  this  seems  the  wildest  delusion  that  ever  took  possession  of 
a  human  brain.  If  there  be  one  principle  of  political  ethics  more  uni 
versally  acknowledged  than  another,  it  is  that  war,  and  especially  civil 
war,  can  be  justified  only  when  it  is  undertaken  to  vindicate  and  up 
hold  the  legal  and  constitutional  rights  of  the  people  ;  not  to  trample 
them  down.  He  who  carries  on  a  system  of  wholesale  slaughter  for 
any  other  purpose,  must  stand  without  excuse  before  God  or  man. 
In  a  time  of  war,  more  than  at  any  other  time,  public  liberty  is  in  the 
hands  of  the  public  officers.  And  she  is  there  in  double  trust :  first, 
as  they  are  citizens,  and  therefore  bound  to  defend  her  by  the  com 
mon  obligation  of  all  citizens ;  and,  next,  as  they  are  her  special 
guardians — 

"Who  should  against  her  murderers  shut  the  door, 
Not  bear  the  knife  themselves." 

The  opposing  argument,  when  turned  into  plain  English,  means  this, 
and  this  only  :  that  when  the  Constitution  is  attacked  upon  one  side, 
its  official  guardians  may  assail  it  upon  the  other ;  when  rebellion 
strikes  it  in  the  face,  they  may  take  advantage  of  the  blindness,  pro 
duced  by  the  blow,  to  sneak  behind  it  and  stab  it  in  the  back. 

The  convention  when  it  framed  the  Constitution,  and  the  people 
when  they  adopted  it,  could  have  had  no  thought  like  that.  If  they 
had  supposed  that  it  would  operate  only  while  perfect  peace  continued, 
they  certainly  would  have  given  us  some  other  rule  to  go  by  in  time 
of  war ;  they  would  not  have  left  us  to  wander  about  in  a  howling 
wilderness  of  anarchy,  without  a  lamp  to  our  feet,  or  a  guide  to  our 
path.  Another  thing  proves  their  actual  intent  still  more  strikingly. 
They  required  that  every  man  in  any  kind  of  public  employment, 
State  or  national,  civil  or  military,  should  swear,  without  reserve  or 

34 


530  FORENSIC. 

qualification,  that  he  would  support  the  Constitution.  Surely  our  an 
cestors  had  too  much  regard  for  the  moral  and  religious  welfare  of 
their  posterity  to  impose  upon  them  an  oath  like  that,  if  they  intended 
and  expected  it  to  be  broken  half  the  time.  The  oath  of  an  officer  to 
support  the  Constitution  is  as  simple  as  that  of  a  witness  to  tell  the 
truth  in  a  court  of  justice.  What  would  you  think  of  a  witness  who 
should  attempt  to  justify  perjury  upon  the  ground  that  he  had  testi 
fied  when  civil  war  was  raging,  and  he  thought  that  by  swearing  to  a 
lie  he  might  promote  some  public  or  private  object  connected  with  the 
strife  ? 

No,  no,  the  great  men  who  made  this  country  what  it  is — the  heroes 
who  won  her  independence,  and  the  statesmen  who  settled  her  institu 
tions — had  no  such  notions  in  their  minds.  Washington  deserved  the 
lofty  praise  bestowed  upon  him  by  the  President  of  Congress  when  he 
resigned  his  commission — that  he  had  always  regarded  the  rights  of 
the  civil  authority  through  all  changes  and  through  all  disasters.  When 
his  duty  as  President  afterward  required  him  to  arm  the  public  force 
to  suppress  a  rebellion  in  Western  Pennsylvania,  he  never  thought  that 
the  Constitution  was  abolished,  by  virtue  of  that  fact,  in  New  Jersey, 
or  Maryland,  or  Virginia.  It  would  have  been  a  dangerous  experi 
ment  for  an  adviser  of  his  at  that  time,  or  at  any  time,  to  propose  that 
he  should  deny  a  citizen  his  right  to  be  tried  by  a  jury,  and  substitute 
in  place  of  it  a  trial  before  a  tribunal  composed  of  men  elected  by  him 
self  from  among  his  own  creatures  and  dependents.  You  can  well 
imagine  how  that  great  heart  would  have  swelled  with  indignation  at 
the  bare  thought  of  such  an  insulting  outrage  upon  the  liberty  and  law 
of  his  country. 

In  the  war  of  1812,  the  man  emphatically  called  the  Father  of  the 
Constitution  was  the  supreme  Executive  Magistrate.  Talk  of  perilous 
times  !  There  was  the  severest  trial  this  Union  ever  saw.  That  was  no 
half -organized  rebellion  on  the  one  side  of  the  conflict,  to  be  crushed 
by  the  hostile  millions  and  unbounded  resources  of  the  other.  The 
existence  of  the  nation  was  threatened  by  the  most  formidable  military 
and  naval  power  then  upon  the  face  of  the  earth.  Every  town  upon 
the  northern  frontier,  upon  the  Atlantic  seaboard,  and  upon  the  Gulf 
coast  was  in  daily  and  hourly  danger.  The  enemy  had  penetrated  the 
heart  of  Ohio.  New  York,  Pennsylvania,  and  Virginia  were  all  of 
them  threatened  from  the  west  as  well  as  the  east.  This  Capitol  was 
taken,  and  burned,  and  pillaged,  and  every  member  of  the  Federal 
Administration  was  a  fugitive  before  the  invading  army.  Meanwhile, 
party  spirit  was  breaking  out  into  actual  treason  all  over  New  Eng 
land.  Four  of  those  States  refused  to  furnish  a  man  or  a  dollar  even 
for  their  own  defense.  Their  public  authorities  were  plotting  the  dis 
memberment  of  the  Union,  and  individuals  among  them  were  burning 
blue-lights  upon  the  coast  as  a  signal  to  the  enemy's  ships.  But  in 


FORENSIC.  531 

all  this  storm  of  disaster,  with  foreign  war  in  his  front,  and  domestic 
treason  on  his  flank,  Madison  gave  out  no  sign  that  he  would  aid  Old 
England  and  New  England  to  break  up  this  government  of  laws.  On 
the  contrary,  he  and  all  his  supporters,  though  compassed  round  with 
darkness  and  with  danger,  stood  faithfully  between  the  Constitution 
and  its  enemies — 

"  To  shield  it,  and  save  it,  or  perisn  there  too." 

The  framers  of  the  Constitution  and  all  their  contemporaries  died 
and  were  buried  ;  their  children  succeeded  them  and  continued  on  the 
stage  of  public  affairs  until  they,  too — 

"Lived  out  their  lease  of  life,  and  paid  their  breath 
.  To  time  and  mortal  custom  "; 

and  a  third  generation  was  already  far  on  its  way  to  the  grave  before 
this  monstrous  doctrine  was  conceived  or  thought  of,  that  public  offi 
cers  all  over  the  country  might  disregard  their  oaths  whenever  a  war 
or  a  rebellion  was  commenced. 

Our  friends  on  the  other  side  are  quite  conscious  that  when  they 
deny  the  binding  obligation  of  the  Constitution  they  must  put  some 
other  system  of  law  in  its  place.  Their  brief  gives  notice  that,  while 
the  Constitution,  and  the  acts  of  Congress,  and  Magna  Charta,  and 
the  common  law,  and  all  the  rules  of  natural  justice  shall  remain 
under  foot,  they  will  try  American  citizens  according  to  the  law  of 
nations !  But  the  law  of  nations  takes  no  notice  of  the  subject.  If 
that  system  did  contain  a  special  provision  that  a  government  might 
hang  one  of  its  own  citizens  without  judge  or  jury,  it  would  still  be 
competent  for  the  American  people  to  say,  as  they  have  said,  that 
no  such  thing  should  ever  be  done  here.  That  is  my  answer  to  the 
law  of  nations. 

But  then  they  tell  us  that  the  laws  of  war  must  be  treated  as  para 
mount.  Here  they  become  mysterious.  Do  they  mean  that  code  of 
public  law  which  defines  the  duties  of  two  belligerent  parties  to  one 
another,  and  regulates  the  intercourse  of  neutrals  with  both  ?  If  yes, 
then  it  is  simply  a  recurrence  to  the  law  of  nations,  which  has  nothing 
on  earth  to  do  with  the  subject.  Do  they  mean  that  portion  of  our 
municipal  code  which  defines  our  duties  to  the  Government  in  war  as 
well  as  in  peace  ?  Then  they  are  speaking  of  the  Constitution  and 
laws,  which  declare  in  plain  words  that  the  Government  owes  every 
citizen  a  fair  legal  trial,  as  much  as  the  citizen  owes  obedience  to  the 
Government.  They  are  in  search  of  an  argument  under  difficulties. 
When  they  appeal  to  international  law,  it  is  silent ;  and  when  they  in 
terrogate  the  law  of  the  land,  the  answer  is  an  unequivocal  contradic 
tion  of  their  whole  theory. 

The  Attorney-General  tells  us  that  all  persons  whom  he  and  his 


532  FORENSIC. 

associates  choose  to  denounce  for  giving  aid  to  the  rebellion  are  to  be 
treated  as  being  themselves  a  part  of  the  rebellion — they  are  public 
enemies,  and  therefore  they  may  be  punished  without  being  found 
guilty  by  a  competent  court  or  a  jury.  This  convenient  rule  would 
outlaw  every  citizen  the  moment  he  is  charged  with  a  political  offense. 
But  political  offenders  are  precisely  the  class  of  persons  who  most  need 
the  protection  of  a  court  and  jury,  for  the  prosecutions  against  them 
are  most  likely  to  be  unfounded  both  in  fact  and  in  law.  Whether 
innocent  or  guilty,  to  accuse  is  to  convict  them  before  the  ignorant 
and  bigoted  men  who  generally  sit  in  military  courts.  But  this  court 
decided  in  the  prize  cases  that  all  who  live  in  the  enemy's  territory  are 
public  enemies,  without  regard  to  their  personal  sentiments  or  con 
duct  ;  and  the  converse  of  the  proposition  is  equally  true — that  all 
who  reside  inside  of  our  own  territory  are  to  be  treated  as  under  the 
protection  of  the  law.  If  they  help  the  enemy  they  are  criminals,  but 
they  can  not  be  punished  without  legal  conviction. 

You  have  heard  much  (and  you  will  hear  more  very  soon)  concern 
ing  the  natural  and  inherent  right  of  the  Government  to  defend  itself 
without  regard  to  law.  This  is  wholly  fallacious.  In  a  despotism  the 
autocrat  is  unrestricted  in  the  means  he  may  use  for  the  defense  of 
his  authority  against  the  opposition  of  his  own  subjects  or  others ;  and 
that  is  precisely  what  makes  him  a  despot.  But  in  a  limited  monarchy 
the  prince  must  confine  himself  to  a  legal  defense  of  his  government. 
If  he  goes  beyond  that,  and  commits  aggressions  on  the  rights  of  the 
people,  he  breaks  the  social  compact,  releases  his  subjects  from  all 
their  obligations  to  him,  renders  himself  liable  to  be  hurled  from  his 
throne,  and  dragged  to  the  block  or  driven  into  exile.  This  principle 
was  sternly  enforced  in  the  cases  of  Charles  I  and  James  II,  and  we 
have  it  announced  on  the  highest  official  authority  here  that  the 
Queen  of  England  can  not  ring  a  little  bell  on  her  table  and  cause  a 
man  by  her  arbitrary  order  to  be  arrested  under  any  pretense  whatever. 
If  that  be  true  there,  how  much  more  true  must  it  be  here,  where  we 
have  no  personal  sovereign,  and  where  our  only  government  is  the 
Constitution  and  laws.  A  violation  of  law,  on  pretense  of  saving  such 
a  Government  as  ours,  is  not  self-preservation,  but  suicide. 

Solus  populi  suprema  lex.  Observe  it  is  not  salus  regis  ;  the  safety 
of  the  people,  not  the  safety  of  the  ruler,  is  the  supreme  law.  When 
those  who  hold  the  authority  of  the  Government  in  their  hands  be 
have  in  such  manner  as  to  put  the  liberties  and  rights  of  the  people  in 
jeopardy,  the  people  may  rise  against  them  and  overthrow  them  with 
out  regard  to  that  law  which  requires  obedience  to  them.  The  maxim 
is  revolutionary,  and  expresses  simply  the  right  to  resist  tyranny  with 
out  regard  to  prescribed  forms.  It  can  never  be  used  to  stretch  the 
powers  of  government  against  the  people. 

If  this  Government  of  ours  has  no  power  to  defend  itself  without 


FORENSIC,  533 

violating  its  own  laws,  it  carries  the  seeds  of  destruction  in  its  own 
bosom ;  it  is  a  poor,  weak,  blind,  staggering  thing,  and  the  sooner  it 
tumbles  over  the  better.  But  it  has  a  most  efficient  legal  mode  of 
protecting  itself  against  all  possible  danger.  It  is  clothed  from  head 
to  foot  in  a  complete  panoply  of  defensive  armor.  What  are  the  perils 
which  may  threaten  its  existence  ?  I  am  not  able  at  this  moment  to 
think  of  more  than  these  which  I  am  about  to  mention  :  foreign  inva 
sion,  domestic  insurrection,  mutiny  in  the  army  and  navy,  corruption 
in  the  civil  administration,  and  last,  but  not  least,  criminal  violations 
of  its  laws  committed  by  individuals  among  the  body  of  the  people. 
Have  we  not  a  legal  mode  of  defense  against  all  these  ?  Yes  :  military 
force  repels  invasion  and  suppresses  insurrection  ;  you  preserve  disci 
pline  in  the  army  and  navy  by  means  of  courts-martial ;  you  preserve 
the  purity  of  the  civil  administration  by  impeaching  dishonest  magis 
trates  ;  and  crimes  are  prevented  and  punished  by  the  regular  judicial 
authorities.  You  are  not  merely  compelled  to  use  these  weapons 
against  your  enemies,  because  they  and  they  only  are  justified  by  the 
law  :  you  ought  to  use  them  because  they  are  more  efficient  than  any 
other,  and  less  liable  to  be  abused. 

There  is  another  view  of  the  subject  which  settles  all  controversy 
about  it.  No  human  being  in  this  country  can  exercise  any  kind  of 
public  authority  which  is  not  conferred  by  law  ;  and  under  the  United 
States  it  must  be  given  by  the  express  words  of  a  written  statute. 
Whatever  is  not  so  given  is  withheld,  and  the  exercise  of  it  is  posi 
tively  prohibited.  Courts-martial  in  the  army  and  navy  are  author 
ized  ;  they  are  legal  institutions ;  their  jurisdiction  is  limited,  and 
their  whole  code  of  procedure  is  regulated,  by  act  of  Congress.  Upon 
the  civil  courts  all  the  jurisdiction  they  have  or  can  have  is  bestowed 
by  law  ;  and  if  one  of  them  goes  beyond  what  is  written,  its  action  is 
ultra  vires  and  void.  But  a  military  commission  is  not  a  court- 
martial,  and  it  is  not  a  civil  court.  It  is  not  governed  by  the  law 
which  is  made  for  either,  and  has  no  law  of  its  own.  Within  the  last 
five  years  we  have  seen,  for  the  first  time,  self-constituted  tribunals 
not  only  assuming  power  which  the  law  did  not  give  them,  but 
thrusting  aside  the  regular  courts  to  which  the  power  was  exclusively 
given. 

What  is  the  consequence  ?  This  terrible  authority  is  wholly  un 
defined,  and  its  exercise  is  without  any  legal  control.  Undelegated 
power  is  always  unlimited.  The  field  that  lies  outside  of  the  Consti 
tution  and  laws  has  no  boundary.  Thierry,  the  French  historian  of 
England,  says  that  when  the  crown  and  scepter  were  offered  to  Crom 
well  he  hesitated  for  several  days,  and  answered,  "Do  not  make  me  a 
king  ;  for  then  my  hands  will  be  tied  up  by  the  laws  which  define  the 
duties  of  that  office ;  but  make  me  protector  of  the  commonwealth, 
and  I  can  do  what  I  please ;  no  statute  restraining  and  limiting  the 


534:  FORENSIC. 

royal  prerogative  will  apply  to  me."  So  these  commissions  have  no 
legal  origin  and  no  legal  name  by  which  they  are  known  among  the 
children  of  men  ;  no  law  applies  to  them  ;  and  they  exercise  all  power 
for  the  paradoxical  reason  that  none  belongs  to  them  rightfully. 

Ask  the  Attorney-General  what  rules  apply  to  military  commissions 
in  the  exercise  of  their  assumed  authority  over  civilians.  Come,  Mr. 
Attorney,  "gird  up  thy  loins  now  like  a  man  ;  I  will  demand  of  thee, 
and  thou  shalt  declare  unto  me  if  thou  hast  understanding."  How  is 
a  military  commission  organized  ?  What  shall  be  the  number  and 
rank  of  its  members  ?  What  offenses  come  within  its  jurisdiction  ? 
What  is  its  code  of  procedure  ?  How  shall  witnesses  be  compelled  to 
attend  it  ?  Is  it  perjury  for  a  witness  to  swear  falsely  ?  What  is  the 
function  of  the  Judge- Advocate  ?  Does  he  tell  the  members  how  they 
must  find,  or  does  he  only  persuade  them  to  convict  ?  Is  he  the  agent 
of  the  Government,  to  command  them  what  evidence  they  shall  admit 
and  what  sentence  they  shall  pronounce  ;  or  does  he  always  carry  his 
point,  right  or  wrong,  by  the  mere  force  of  eloquence  and  ingenuity  ? 
What  is  the  nature  of  their  punishment  ?  May  they  confiscate  prop 
erty  and  levy  fines  as  well  as  imprison  and  kill  ?  In  addition  to 
strangling  their  victim,  may  they  also  deny  him  the  last  consolations 
of  religion,  and  refuse  his  family  the  melancholy  privilege  of  giving 
him  a  decent  grave  ? 

To  none  of  these  questions  can  the  Attorney-General  make  a  reply, 
for  there  is  no  law  on  the  subject.  He  will  not  attempt  to  "darken 
counsel  by  words  without  knowledge,"  and  therefore,  like  Job,  he  can 
only  lay  his  hand  upon  his  mouth  and  keep  silence. 

The  power  exercised  through  those  military  commissions  is  not 
only  unregulated  by  law,  but  it  is  incapable  of  being  so  regulated. 
What  is  it  that  you  claim,  Mr.  Attorney  ?  I  will  give  you  a  defini 
tion,  the  correctness  of  which  you  will  not  attempt  to  gainsay.  You 
assert  the  right  of  the  Executive  Government,  without  the  intervention 
of  the  judiciary,  to  capture,  imprison,  and  kill  any  person  to  whom 
that  Government  or  its  paid  dependents  may  choose  to  impute  an 
offense.  This,  in  its  very  essence,  is  despotic  and  lawless.  It  is  never 
claimed  or  tolerated  except  by  those  governments  which  deny  the  re 
straints  of  all  law.  It  has  been  exercised  by  the  great  and  small  op 
pressors  of  mankind  ever  since  the  days  of  Nimrod.  It  operates  in 
different  ways  ;  the  tools  it  uses  are  not  always  the  same  ;  it  hides  its 
hideous  features  under  many  disguises ;  it  assumes  every  variety  of 
form ; 

"  It  can  change  shapes  with  Proteus  for  advantages, 
And  set  the  murderous  Machiavel  to  school." 

But  in  all  its  mutations  of  outward  appearance  it  is  still  identical  in 
principle,  object,  and  origin.  It  is  always  the  same  great  engine  of 
despotism  which  Hamilton  described  it  to  be. 


FORENSIC.  535 

Under  the  old  French,  monarchy  the  favorite  fashion  of  it  was  a 
l3ttre  de  cachet,  signed  by  the  king,  and  this  would  consign  the  party 
to  a  loathsome  dungeon  until  he  died,  forgotten  by  all  the  world.  An 
imperial  ukase  will  answer  the  same  purpose  in  Russia.  The  most 
faithful  subject  of  that  amiable  autocracy  may  lie  down  in  the  evening 
to  dream  of  his  future  prosperity,  and  before  daybreak  he  will  find 
himself  between  two  dragoons  on  his  way  to  the  mines  of  Siberia.  In 
Turkey  the  verbal  order  of  the  Sultan  or  any  of  his  powerful  favorites 
will  cause  a  man  to  be  tied  up  in  a  sack  and  cast  into  the  Bosphorus. 
Nero  accused  Peter  and  Paul  of  spreading  a  "pestilent  superstition," 
which  they  called  the  Gospel.  He  heard  their  defense  in  person,  and 
sent  them  to  the  cross.  Afterward  he  tried  the  whole  Christian 
church  in  one  body,  on  a  charge  of  setting  fire  to  the  city,  and  he  con 
victed  them,  though  he  knew  not  only  that  they  were  innocent,  but 
that  he  himself  had  committed  the  crime.  The  judgment  was  fol 
lowed  by  instant  execution ;  he  let  loose  the  Praetorian  guards  upon 
men,  women,  and  children,  to  drown,  butcher,  and  burn  them.  Herod 
saw  fit,  for  good  political  reasons,  closely  affecting  the  permanence  of 
his  reign  in  Judea,  to  punish  certain  possible  traitors  in  Bethlehem  by 
anticipation.  This  required  the  death  of  all  the  children  in  that  city 
under  two  years  of  age.  He  issued  his  "general  order";  and  his 
provost-marshal  carried  it  out  with  so  much  alacrity  and  zeal  that  in 
one  day  the  whole  land  was  filled  with  mourning  and  lamentation. 

Macbeth  understood  the  whole  philosophy  of  the  subject.  He  was 
an  unlimited  monarch.  His  power  to  punish  for  any  offense  or  for  no 
offense  at  all  was  as  broad  as  that  which  the  Attorney-General  claims 
for  himself  and  his  brother  officers  under  the  United  States.  But  he 
was  more  cautious  how  he  used  it.  He  had  a  dangerous  rival,  from 
whom  he  apprehended  the  most  serious  peril  to  the  "life  of  his  govern 
ment."  The  necessity  to  get  rid  of  him  was  plain  enough,  but  he 
could  not  afford  to  shock  the  moral  sense  of  the  world  by  pleading 
political  necessity  for  a  murder.  He  must — 

"  Mask  the  business  from  the  common  eye." 

Accordingly  he  sent  for  two  enterprising  gentlemen,  whom  he  took 
into  his  service  upon  liberal  pay — "made  love  to  their  assistance" — 
and  got  them  to  deal  with  the  accused  party.  He  acted  as  his  own 
Judge- Advocate.  He  made  a  most  elegant  and  stirring  speech  to  per 
suade  his  agents  that  Banquo  was  their  oppressor,  and  had  "held 
them  so  under  fortune  "  that  he  ought  to  die  for  that  alone.  "When 
they  agreed  that  he  was  their  enemy,  then  said  the  king  : 

"  So  is  he  mine,  and  though  I  could 
With  barefaced  power  sweep  him  from  my  sight 
And  hid  my  will  avouch  it ;  yet  I  must  not, 


536  FORENSIC. 

For  certain  friends,  who  are  both  his  and  mine, 
Whose  loves  I  may  not  drop." 

For  these,  and  "  many  weighty  reasons  "  besides,  he  thought  it  best 
to  commit  the  execution  of  his  design  to  a  subordinate  agency.  The 
commission  thus  organized  in  Banquo's  case  sat  upon  him  that  very 
night,  at  a  convenient  place  beside  the  road  where  it  was  known  he 
would  be  traveling ;  and  they  did  precisely  what  the  Attorney-General 
says  the  military  officers  may  do  in  this  country — they  took  and  killed 
him,  because  their  employer  at  the  head  of  the  government  wanted  it 
done,  and  paid  them  for  doing  it  out  of  the  public  treasury. 

But  of  all  the  persons  that  ever  wielded  this  kind  of  power,  the 
one  who  went  most  directly  to  the  purpose  and  object  of  it  was  Lola 
Montez.  She  reduced  it  to  the  elementary  principle.  In  1848,  when 
she  was  minister  and  mistress  to  the  King  of  Bavaria,  she  dictated  all 
the  measures  of  the  government.  The  times  were  troublesome.  All 
over  Germany  the  spirit  of  rebellion  was  rising ;  everywhere  the  peo 
ple  wanted  to  see  a  first-class  revolution,  like  that  which  had  just  ex 
ploded  in  France.  Many  persons  in  Bavaria  disliked  to  be  governed 
so  absolutely  by  a  lady  of  the  character  which  Lola  Montez  bore,  and 
some  of  them  were  rash  enough  to  say  so.  Of  course  that  was  treason, 
and  she  went  about  to  punish  it  in  the  simplest  of  all  possible  ways. 
She  bought  herself  a  pack  of  English  bull-dogs,  trained  to  tear  the 
flesh,  and  mangle  the  limbs,  and  lap  the  life-blood :  and  with  these 
dogs  at  her  heels,  she  marched  up  and  down  the  streets  of  Munich 
with  a  most  majestic  tread,  and  with  a  sense  of  power  which  any 
Judge- Advocate  in  America  might  envy.  When  she  saw  any  person 
whom  she  chose  to  denounce  for  "thwarting  the  government,"  or 
"using  disloyal  language,"  her  obedient  followers  needed  but  a  sign 
to  make  them  spring  at  the  throat  of  their  victim.  It  gives  me  un 
speakable  pleasure  to  tell  you  the  sequel.  The  people  rose  in  their 
strength,  smashed  down  the  whole  machinery  of  oppression,  and  drove 
out  into  uttermost  shame  king,  strumpet,  dogs,  and  all.  From  that 
time  to  this  neither  man,  woman,  nor  beast,  has  dared  to  worry  or  kill 
the  people  of  Bavaria. 

All  these  are  but  so  many  different  ways  of  using  the  arbitrary 
power  to  punish.  The  variety  is  merely  in  the  means  which  a  tyran 
nical  government  takes  to  destroy  those  whom  it  is  bound  to  protect. 
Everywhere  it  is  but  another  construction,  on  the  same  principle,  of 
that  remorseless  machine  by  which  despotism  wreaks  its  vengeance  on 
those  who  offend  it.  In  a  civilized  country  it  nearly  always  uses  the 
military  force,  because  that  is  the  sharpest,  and  surest,  as  well  as  the 
best-looking  instrument  that  can  be  found  for  such  a  purpose.  But 
in  none  of  its  forms  can  it  be  introduced  into  this  country  ;  we  have 
no  room  for  it ;  the  ground  here  is  all  preoccupied  by  legal  and  free 
institutions. 


FORENSIC.  537 

Between  the  officers  who  have  a  power  like  this,  and  the  people 
who  are  liable  to  become  its  victims,  there  can  be  no  relation  except 
that  of  master  and  slave.  The  master  may  be  kind,  and  the  slave  may 
be  contented  in  his  bondage  ;  but  the  man  who  can  take  your  life,  or 
restrain  your  liberty,  or  despoil  you  of  your  property  at  his  discretion, 
either  with  his  own  hands  or  by  means  of  a  hired  overseer,  owns  you 
and  he  can  force  you  to  serve  him.  All  you  are  and  all  you  have, 
including  your  wives  and  children,  are  his  property. 

If  my  learned  and  very  good  friend,  the  Attorney-General,  had 
this  right  of  domination  over  me,  I  should  not  be  very  much'  fright 
ened,  for  I  should  expect  him  to  use  it  as  moderately  as  any  man  in 
all  the  world ;  but  still  I  should  feel  the  necessity  of  being  very  dis 
creet.  He  might  change  in  a  short  time.  The  thirst  for  blood  is  an 
appetite  which  grows  by  what  it  feeds  upon.  We  can  not  know  him 
by  present  appearances.  Eobespierre  resigned  a  country  judgeship  in 
early  life  because  he  was  too  tender-hearted  to  pronounce  sentence  of 
death  upon  a  convicted  criminal.  Caligula  passed  for  a  most  amiable 
young  gentleman  before  he  was  clothed  with  the  imperial  purple,  and 
for  about  eight  months  afterward.  It  was  Trajan,  I  think,  who  said 
that  absolute  power  would  convert  any  man  into  a  wild  beast,  what 
ever  was  the  original  benevolence  of  his  nature.  If  you  decide  that 
the  Attorney-General  holds  in  his  own  hands,  or  shares  with  others, 
the  power  of  life  and  death  over  us  all,  I  mean  to  be  very  cautious  in 
my  intercourse  with  him ;  and  I  warn  you,  the  judges  whom  I  am 
now  addressing,  to  do  likewise.  Trust  not  to  the  gentleness  and  kind 
ness  which  have  always  marked  his  behavior  heretofore.  Keep  your 
distance ;  be  careful  how  you  approach  him ;  for  you  know  not  at 
what  moment  or  by  what  a  trifle  you  may  rouse  the  sleeping  tiger. 
Remember  the  injunction  of  Scripture  :  "  Go  not  near  to  the  man 
who  hath  power  to  kill ;  and  if  thou  come  unto  him,  see  that  thou 
make  no  fault,  lest  he  take  away  thy  life  presently  ;  for  thou  goest 
among  snares  and  walkest  upon  the  battlements  of  the  city." 

The  right  of  the  Executive  Government  to  kill  and  imprison  citi 
zens  for  political  offenses  has  not  been  practically  claimed,  in  this 
country,  except  in  cases  where  commissioned  officers  of  the  army  were 
the  -instruments  used.  Why  should  it  be  confined  to  them  ?  Why 
should  not  naval  officers  be  permitted  to  share  in  it  ?  What  is  the 
reason  that  common  soldiers  and  seamen  are  excluded  from  all  par 
ticipation  in  the  business  ?  No  law  has  bestowed  the  right  upon  army 
officers  more  than  upon  other  persons.  If  men  are  to  be  hung  up 
without  that  legal  trial  which  the  Constitution  guarantees  to  them, 
why  not  employ  commissions  of  clergymen,  merchants,  manufacturers, 
horse-dealers,  butchers,  or  drovers,  to  do  it  ?  It  will  not  be  pretended 
that  military  men  are  better  qualified  to  decide  questions  of  fact  or 
law  than  other  classes  of  people  ;  for  it  is  known,  on  the  contrary,  that 


538  FORENSIC. 

they  are,  as  a  general  rule,  least  of  all  fitted  to  perform  the  duties  that 
belong  to  a  judge. 

The  Attorney-General  thinks  that  a  proceeding  which  takes  away 
the  lives  of  citizens  without  a  constitutional  trial  is  a  most  merciful 
dispensation.  His  idea  of  humanity  as  well  as  law  is  embodied  in 
the  bureau  of  military  justice,  with  all  its  dark  and  bloody  machinery. 
For  that  strange  opinion  he  gives  this  curious  reason  :  that  the  duty 
of  the  commander-in-chief  is  to  kill,  and  unless  he  has  this  bureau  and 
these  commissions  he  must  "butcher"  indiscriminately,  without  mercy 
or  justice.  I  admit  that  if  the  commander-in-chief  or  any  other  offi 
cer  of  the  Government  has  the  power  of  an  Asiatic  king,  to  butcher 
the  people  at  pleasure,  he  ought  to  have  somebody  to  aid  him  in  select 
ing  his  victims,  as  well  as  to  do  the  rough  work  of  strangling  and 
shooting.  But  if  my  learned  friend  will  only  condescend  to  cast  an 
eye  upon  the  Constitution,  he  will  see  at  once  that  all  the  executive 
and  military  officers  are  completely  relieved  by  the  provision  that  the 
life  of  a  citizen  shall  not  be  taken  at  all  until  after  legal  conviction  by 
a  court  and  jury. 

You  can  not  help  but  see  that  military  commissions,  if  suffered  to 
go  on,  will  be  used  for  most  pernicious  purposes.  I  have  criticised 
none  of  their  past  proceedings,  nor  made  any  allusion  to  their  history 
in  the  last  five  years.  But  what  can  be  the  meaning  of  this  effort  to 
maintain  them  among  us  ?  Certainly  not  to  punish  actual  guilt.  All 
the  ends  of  true  justice  are  attained  by  the  prompt,  speedy,  impartial 
trial  which  the  courts  are  bound  to  give.  Is  there  any  danger  that 
crime  will  be  winked  upon  by  the  judges  ?  Does  anybody  pretend 
that  courts  and  juries  have  less  ability  to  decide  upon  facts  and  law 
than  the  men  who  sit  in  military  tribunals  ?  The  counsel  in  this 
cause  will  not  insult  you  by  even  hinting  such  an  opinion.  What 
righteous  or  just  purpose,  then,  can  they  serve  ?  None,  whatever. 

But  while  they  are  utterly  powerless  to  do  even  a  shadow  of  good, 
they  will  be  omnipotent  to  trample  upon  innocence,  to  gag  the  truth, 
to  silence  patriotism,  and  crush  the  liberties  of  the  country.  They 
will  always  be  organized  to  convict,  and  the  conviction  will  follow  the 
accusation  as  surely  as  night  follows  the  day.  The  Government,  of 
course,  will  accuse  none  before  such  a  commission  except  those  whom 
it  predetermines  to  ruin  and  destroy.  The  accuser  can  choose  the 
judges,  and  will  certainly  select  those  who  are  known  to  be  the  most 
ignorant,  the  most  unprincipled,  and  the  most  ready  to  do  whatever 
may  please  the  power  which  gives  them  pay,  promotion,  and  plunder. 
The  willing  witness  can  .be  found  as  easily  as  the  superserviceable 
judge.  The  treacherous  spy,  and  the  base  informer — those  loathsome 
wretches  who  do  their  lying  by  the  job — will  stock  such  a  market  with 
abundant  perjury,  for  the  authorities  that  employ  them  will  be  bound 
to  protect  as  well  as  reward  them.  A  corrupt  and  tyrannical  govern- 


FORENSIC.  539 

ment,  with  such  an  engine  at  its  command,  will  shock  the  world  with 
the  enormity  of  its  crimes.  Plied  as  it  may  be  by  the  arts  of  a  malig 
nant  priesthood,  and  urged  on  by  the  madness  of  a  raving  crowd,  it 
will  be  worse  than  the  popish  plot,  or  the  French  revolution — it  will 
be  a  combination  of  both,  with  Fouquier-Tinville  on  the  bench,  and 
Titus  Gates  in  the  witness's  box.  You  can  save  us  from  this  horrible 
fate.  You  alone  can  "deliver  us  from  the  body  of  this  death."  To 
that  fearful  extent  is  the  destiny  of  this  nation  in  your  hands. 


UNITED  STATES    vs.   BLYEW  ET  AL.    (CIVIL  BIGHTS 

BILL). 

IN   THE   SUPEEME   COUET   OF   THE   UNITED   STATES. 

IF  your  honors  please,  this  is  a  capital  case.  The  plaintiffs  in  error 
have  been  sentenced  to  death,  and  that  doom  is  impending  over  their 
heads  at  this  time.  Usually  a  cause  which  involves  the  life  of  a  hu 
man  being  has  a  certain  degree  of  solemnity  thrown  around  it  by  that 
fact  alone.  Not  much,  however,  has  been  said  about  it  here,  probably 
because  there  has  been  a  general  impression  made  of  the  prisoners' 
guilt.  The  State  of  Kentucky  accuses  them,  the  United  States  have 
convicted  them,  and  no  counsel  employed  by  themselves  are  here  to 
defend  them.  I  admit  nothing  against  them.  No  man  in  a  court  of 
justice  can  properly  say  of  another  that  he  is  guilty  of  murder,  or  any 
other  criminal  offense,  until  he  has  been  convicted  upon  a  fair  trial 
before  an  impartial  jury  and  a  court  of  competent  jurisdiction  ;  and 
such  a  trial  these  men  have  not  had,  if  I  understand  the  subject  rightly. 

It  is  the  question  of  conflicting  jurisdiction  between  the  State  and 
Federal  courts  which  gives  interest  and  dignity  to  this  cause.  The 
decision  which  you  may  make  on  it  will  be  felt  in  its  influence  on  the 
destinies  of  the  country  long  after  you  and  I  and  all  of  us  shall  have 
mingled  with  the  clods  of  the  valley.  Every  question  of  constitu 
tional  law  is  important  when  it  comes  to  be  decided  by  the  tribunal  of 
last  resort,  from  which  there  is  no  appeal  except  to  the  sword ;  and  if 
there  be  any  one  case  that  is  more  important  than  all  others,  even  of 
that  kind,  it  is  one  in  which  the  supreme  judicial  tribunal  of  the  coun 
try  is  required  to  draw  the  line  of  demarcation  between  the  powers  of 
a  great  central  government  on  the  one  hand  and  the  local  rights  of 
self-government  retained  to  the  States  and  the  people  on  the  other.  If 
some  future  Hallam  shall  write  the  constitutional  history  of  America, 
I  know  of  nothing  more  likely  than  this  to  occupy  a  prominent  place 
on  his  pages.  I  hope  and  I  believe  he  will  be  able  to  say  with  truth 
that  you  have  been  equal  to  your  duty. 

I  can  not,  or  rather  I  will  not,  follow  my  learned  friend,  the  Solici- 


540  FORENSIC. 

tor-General,  where  he  has  traveled  so  far  out  of  the  record,  as  I  think 
he  did  when  he  indulged  in  that  eloquent  denunciation  of  the  State 
of  Kentucky.  You  would  suppose,  from  what  he  and  the  Attorney- 
General  have  said,  that  the  people  of  Kentucky  are  engaged  in  a  con 
stant  and  barbarous  warfare  upon  the  black  population.  They  would 
have  you  to  believe  that  that  State,  and  the  administration  of  the 
laws  in  the  courts,  encourage  and  protect  the  whites  in  the  perpetra 
tion  of  every  outrage  on  persons  of  African  descent.  The  Solicitor- 
General  distinctly  asserted  that  under  the  laws  of  Kentucky  a  white 
man  had  a  right  to  go  into  a  negro  church  and  kill  the  minister  in 
cold  blood.  The  Attorney- General  expands  this  statement,  and  says 
that  every  man,  woman,  and  child  in  the  congregation  may  be  killed 
with  perfect  impunity.  They  would  have  you  to  believe  not  only 
that  these  outrages  may  lawfully  be  perpetrated,  but  that  they  are 
habitual  practices.  The  cannibals  of  New  Zealand  are  mild  and  mer 
ciful  in  comparison  with  the  Kentuckians,  if  you  take  the  picture 
of  them  which  the  law  officers  of  the  United  States  have  painted. 
But  all  this,  you  must  observe,  is  mere  general  abuse,  not  only  with 
out  proof,  but  without  specification.  They  produce  no  evidence  of 
their  assertions,  and  they  mention  no  instance  of  any  act  which,  if 
true,  would  justify  them.  I  take  leave  to  contradict  these  denuncia 
tions  in  all  their  length  and  breadth.  They  are  utterly  without 
foundation.  The  people  of  Kentucky  have  behaved  toward  the  Afri 
cans  among  them  with  uniform  kindness,  with  perfect  justice,  and 
with  all  the  magnanimity  which  ought  to  mark  the  conduct  of  the 
superior  race  to  the  inferior  and  the  weaker.  The  laws  may  not  be 
perfect ;  I  know  of  no  human  code  that  is  :  but  thus  far  there  has 
been  no  failure  of  justice  to  the  negro  on  that  account,  much  less  has 
there  ever  been  any  instance  of  wrong  from  the  partiality  of  the  courts. 
By  the  whole  body  of  the  people,  by  those  who  make  the  laws  and  by 
those  who  administer  them,  crime  is  regarded  as  no  less  a  crime  when 
negroes  have  suffered  by  it  than  whites.  I  am  instructed  to  say,  and 
I  do  say  with  perfect  confidence,  that  in  no  case  has  justice  been  de 
nied  or  delayed  to  any  person,  white  or  black,  except  where  it  was 
caused  by  the  interference  of  the  Federal  authorities.  This  act  of 
Congress,  called  the  "Civil  Rights  Bill,"  has  dislocated  all  the  ma 
chinery  of  the  State  courts,  and  rendered  them  powerless  to  perform 
their  duty.  If  they  attempt  to  execute  justice,  the  judges  themselves 
are  liable  to  be  hunted  down  as  criminals.  The  jurisdiction  of  the 
State  courts  is  entirely  taken  away  in  every  case  which  affects  a  negro 
in  any  way  whatever,  and  yet  the  officers  of  the  United  States  come 
into  this  court,  and  with  their  feet  on  the  neck  of  the  prostrate  com 
monwealth,  vent  curses  and  maledictions  and  objurgations  upon  her 
for  not  doing  justice  to  the  negro  ! 

A  person  standing  where  I  stand  might  be  tempted  to  follow  the 


FORENSIC.  541 

Solicitor-General  out  of  the  record,  and  enunciate  some  general  doc 
trines  not  altogether  unprofitable  for  reproof  and  for  admonition  to 
Federal  officers.  But  I  make  no  appeal  to  the  passions.  Let  the 
stump  and  the  newspaper  do  that.  One  who  desires  to  speak  upon 
this  case  within  the  record,  and  directly  to  the  points  before  the  court, 
will  find  himself  restricted  to  a  narrow  compass.  What  I  have  to  say 
upon  it,  therefore,  will  be  said  briefly  ;  I  hope  it  will  be  said  intelli 
gibly  and  plainly,  as  befits  the  discussion  of  a  subject  so  entirely  sim 
ple  as  I  believe  this  to  be.  '  , 

The  facts  which  you  are  required  to  keep  in  your  memory  can  be 
stated  in  a  breath.  A  murder  was  committed  in  a  remote  county  of 
the  State  of  Kentucky.  When  I  say  "  remote,"  I  do  not  mean  that  it 
was  wild  or  uninhabited,  but  that  it  was  a  rural  district,  far  away  from 
any  great  thoroughfare  of  travel,  or  any  great  center  of  trade  and  pop 
ulation.  It  was  accompanied  with  circumstances  of  unusual  atrocity, 
calculated  to  excite  the  alarm  and  indignation  of  the  whole  neighbor 
hood,  and  all  who  heard  of  it.  But  it  was  committed  within  the  lim 
its  of  the  State  of  Kentucky,  and  on  her  soil,  within  the  body  of  a 
county.  It  was  an  atrocious  insult  to  her  dignity,  and  the  grossest 
possible  outrage  upon  the  peace  of  that  community,  which,  by  the  or 
ganic  law  of  this  land  was  placed  under  her  sole  protection.  Her  law 
and  the  law  of  God  alone  were  offended  by  it,  and  none  but  the  Al 
mighty  and  the  State  of  Kentucky  had  a  right  to  enter  into  judgment 
with  the  perpetrators  of  it.  No  other  State,  or  sovereignty,  prince,  or 
potentate  on  the  earth  had  made,  or  had  the  power  to  make,  any  law 
which  would  punish  that  offense  at  that  place.  The  United  States 
never  pretended  that  they  had  legislative  jurisdiction  on  the  subject, 
never  declared  a  murder  within  the  limits  of  any  State  to  be  an  offense 
against  them.  It  was  no  more  an  offense  against  the  United  States 
than  it  was  against  the  Republic  of  France,  or  the  Empire  of  Germany. 

The  people  and  the  public  authorities  of  the  State  took  the  meas 
ures  that  were  proper  and  necessary  in  the  premises.  They  ascer 
tained,  or  supposed  they  had  ascertained,  who  the  murderers '  were. 
They  followed  them,  overtook  them,  arrested  them,  carried  them  be 
fore  a  magistrate,  by  whom,  after  a  preliminary  examination,  they 
were  committed — committed  only  in  the  way  that  a  State  magistrate 
had  a  right  to  commit  them — to  the  jail  of  the  proper  county,  to  await 
their  trial  before  the  only  court  which,  by  the  laws  of  Kentucky,  had 
a  right  to  try  and  to  punish  them.  How  long  they  were  there  I  do 
not  know.  I  know  nothing  upon  that  subject  except  what  appears 
upon  the  record,  and  what  was  stated  here  by  the  Solicitor-General 
yesterday.  One  thing,  however,  is  certain  :  that  before  a  trial  could 
be  had  in  the  regular  course  of  justice,  these  men  were  taken  away, 
out  of  the  custody  of  the  officer  who  held  them,  and  carried  beyond  the 
reach  of  the  State  authorities. 


542  FORENSIC. 

If  I  were  to  stop  just  there,  say  no  more  about  it,  and  you  had  no 
means  of  getting  any  information  except  what  I  have  given  you,  the 
natural,  the  necessary  conclusion  would  be  that  this  rescue  of  the 
prisoners  had  been  made  by  a  lawless  mob,  composed  either  of  their 
friends,  who  desired  to  give  them  a  chance  of  escape,  or  else  a  mob 
made  up  of  their  enemies,  whose  hot  thirst  for  their  blood  would  not 
wait  for  the  slow  vengeance  of  the  law.  The  Solicitor-General  said 
there  was  a  mob  in  the  case.  I  did  not  know  that  before  ;  but  it  was 
not  a  mob  that  carried  them  away.  They  were  not  taken  out  of  jail 
by  any  band  of  regulators  nor  by  any  committee  of  vigilance.  It  was 
the  United  States  marshal  who  did  that  deed,  and  did  it,  I  presume, 
in  pursuance  of  what  he  supposed  to  be  his  duty  ;  he  transported  them 
to  Louisville,  a  distance  of  one  hundred  and  fifty  or  two  hundred 
miles,  there  to  be  tried,  not  by  a  Lynch  court,  but  by  the  Circuit 
Court  of  the  United  States  ;  and  there  they  were  tried.  The  public 
accuser  of  the  United  States  for  that  district  appeared  against  them, 
and  preferred  an  indictment  to  the  grand  jury,  which  was  found  a  true 
bill.  This  indictment  charged  them  not  simply  with  murder,  but 
with  murder  upon  a  person  of  the  African  race.  The  averment  was 
added  that  a  witness  was  present  of  the  same  color,  who  saw  it  done. 
Then  he  charged  them,  as  a  further  aggravation,  with  being  white 
men.  All  these  unusual  charges  are  true.  The  murder,  by  whomso 
ever  committed,  was  on  a  negro  woman  ;  a  negro  witness  saw  it ;  and 
the  prisoners  are  guilty  of  a  skin  not  colored  like  that  of  the  African. 
Upon  these  grounds  the  District  Attorney  insisted  that  this  offense 
against  the  State  of  Kentucky  was  triable  in  the  courts  of  the  United 
States.  His  ingenious  eloquence  enabled  him  to  convince  that  court 
that  it  had  jurisdiction,  and  he  is  here  now  in  the  shape  of  a  Solicitor- 
General  to  convince  you  that  you  ought  to  affirm  the  judgment. 

If  the  Circuit  Court  of  the  United  States  had  the  jurisdiction 
which  was  claimed  for,  and  exercised  by  it,  then  the  State  is  utterly 
disarmed  of  the  power  to  protect  her  own  people  against  a  very  large 
class  of  criminal  offenders,  or  to  defend  her  own  existence  against  any 
assault  that  may  be  made  upon  it ;  the  most  important  function  of 
a  free  State  is  wrested  from  her  and  delivered  over  to  the  officers  and 
agents  of  another  and  a  different  government,  which  may  or  may  not 
be  administered  by  total  strangers  to  the  State — perhaps  the  bitter 
enemies  to  her  peace  and  prosperity — men  who  think  it  a  crime  to 
sympathize  with  her  people — men  who  would  "laugh  at  her  calamity 
and  mock  when  her  fear  cometh."  It  is  hard  that  a  blow  like  this 
should  have  come  from  the  distinguished  gentleman  who  has  given  it 
so  much  force  both  here  and  in  the  court  below.  I  think  he  is  proud 
of  his  State.  He  nods  his-  head.  He  ought  to  be,  for  there  are  por 
tions  of  her  history  which  would  honor  any  nation  in  the  world. 
The  State  is  proud  of  him  too ;  at  least,  I  suppose  that  there  is,  as 


FORENSIC.  543 

there  ought  to  be,  a  good  deal  of  mutual  admiration  between  them. 
He  can  hardly  be  conscious  that  he  has  a  rope  around  the  neck  of  his 
political  mother,  and  that  every  pull  he  makes  upon  it  is  choking  the 
life  out  of  her  body. 

However,  we  can  not  get  either  him  or  his  chief  to  understand  the 
subject  as  we  do.  It  is  necessary,  therefore,  that  we  should  call  your 
careful  attention  to  the  consequences  which  must  result  from  your 
affirmance  of  this  jurisdiction.  You  will  know  that  we  are  not  mak 
ing  a  mere  captious  objection  to  a  measure  enacted  by  Congress,  but 
standing  in  the  defense  of  those  rights  without  which  the  State  must 
cease  to  be  a  State. 

Neither  of  the  gentlemen  on  the  other  side  has  raised,  but,  on  the 
contrary,  both  have  refused  to  raise,  or  rather  they  have  evaded,  the 
question  whether  the  law  of  1866  gives  to  the  Federal  courts  exclusive 
jurisdiction  of  the  cases  within  its  purview,  or  whether  it  is  concur 
rent  with  the  State  courts.  I  am  somewhat  surprised  to  find  them 
halting  between  two  opinions  on  a  point  like  that.  The  jurisdiction 
is  exclusive  beyond  all  possible  doubt.  There  are,  as  they  have  truly 
said,  two  classes  of  cases  here  of  which  jurisdiction  is  given  to  the 
Federal  courts.  One  consists  of  those  cases  which  arise  under  the 
law  itself,  such  as  are  created,  defined,  and  made  punishable  by  the 
act  of  Congress — an  indictment,  for  instance,  against  a  judge  for  ad 
ministering  the  law  of  Kentucky  according  to  his  oath.  Of  this  first 
class  exclusive  jurisdiction  is  given  in  terms  to  the  District  Coiirt  of 
the  United  States.  There  is  another  class  of  cases  for  which  no  Fed 
eral  law  has  provided  any  punishment,  cases  which  arise  wholly  and 
entirely  under  the  State  law — such  a  cause  as  the  one  before  you.  Of 
these  jurisdiction  is  given  to  the  District  Court  to  be  exercised  by  it 
concurrently  with  the  Circuit  Court  of  the  United  States.  Now, 
when  you  give  jurisdiction  to  one  court  concurrently  with  another,  ex 
vi  termini,  that  excludes  all  other  courts.  You  can  not  say  that  there 
is  a  concurrent  jurisdiction  between  two  courts  and  mean  to  say  that 
another  court  has  also  concurrent  jurisdiction. 

Besides  that,  it  is  very  clear  that  the  reason  why  this  jurisdiction 
was  to  be  taken  in  any  case  from  the  State  courts  and  given  to  the 
Federal  courts  was  because  Congress  thought  it  not  proper  to  trust  the 
State  courts  with  the  decision  of  any  case  which  might  affect  negroes, 
mulattoes,  or  persons  of  African  descent.  That  general  intent  and 
purpose  of  the  law  would  be  wholly  defeated  if  the  State  courts  had 
concurrent  jurisdiction  in  every  case  where  they,  by  superior  vigi 
lance,  activity,  or  force,  would  be  able  to  get  possession  of  the  party 
first.  Congress  could  not  have  meant  to  give  two  different  and  hostile 
sets  of  courts  a  scrambling  jurisdiction,  to  be  contended  for  like  a 
piece  of  wild  land  on  the  Western  frontier,  where  one  squatter  has  title 
as  long  as  another  does  not  "jump  "his  claim.  It  could  not  have 


544:  FORENSIC. 

been  meant  to  reduce  a  question  of  jurisdiction  in  criminal  cases  to 
Eob  Roy's  rule,  that — 

"He  shall  take  who  hath  the  power, 
And  he  shall  keep  who  can." 

Then  it  is  an  exclusive  jurisdiction  in  the  Federal  courts,  and  a 
total  denial  of  all  right  on  the  part  of  the  State  courts  to  intermeddle 
in  any  case  which  affects  the  negro  race.  That  is  the  result  of  this 
law,  if  it  be  valid  and  constitutional.  It  does  of  course  affect  the  negro 
race  whenever  one  of  them  is  a  party.  By  the  construction  of  our 
opponents,  negroes  are  also  affected,  and,  as  a  consequence,  the  State  is 
deprived  of  its  power  to  try  or  punish  white  offenders  in  every  case 
where  the  crime,  at  the  time  of  its  commission,  incidentally  produced 
injury  to  any  person  of  that  color,  although  the  proceeding  is  not  in 
stituted  to  redress  the  private  injury,  but  only  to  vindicate  the  State 
against  a  public  wrong.  And  they  assert  that  it  also  affects  them  in 
every  case  where  any  person  of  the  African  race  or  color  may  be  a  wit 
ness  to  prove  the  crime  with  which  a  white  man  is  charged. 

It  does  not  matter  whether  the  testimony  of  the  black  witness  is 
important  or  unimportant.  The  same  fact  may  be  testified  to  by  a 
hundred  white  witnesses  of  credible  character,  but  if  there  be  a  black 
one,  no  matter  how  unnecessary  his  evidence  is  to  the  conviction  of 
the  party  accused,  that  is  sufficient,  proprio  vigore,  to  oust  the  juris 
diction  of  the  State  courts  and  vest  the  exclusive  jurisdiction  in  the 
Federal  courts.  If  a  fight  takes  place  at  a  militia  muster,  or  a  cross 
roads  meeting,  or  a  general  election,  or  a  barbecue,  or  at  any  other 
public  gathering,  in  the  presence  of  a  thousand  white  persons  who  can 
testify  to  it,  though  it  concern  nobody  but  white  men,  though  it  is 
between  white  men  entirely,  they  can  not  be  indicted  for  the  offense 
in  a  State  court  if  one  single  negro  or  mulatto  in  that  whole  crowd 
saw  the  thing  done.  If  a  negro  is  indicted,  along  with  others,  for 
being  in  the  affray,  it  goes,  of  course,  to  the  Federal  courts.  If  a  white 
man  is  taken  up  for  a  crime  against  the  State,  indicted,  arraigned,  and 
his  guilt  clearly  proved  by  white  witnesses,  he  can  defeat  the  jurisdic 
tion,  and  entitle  himself  to  an  acquital,  not  by  proving  that  he  is  in 
nocent  of  the  offense,  but  by  proving  that  he  is  guilty,  and  that  the 
crime  was  done  in  the  presence  of  a  negro.  If  the  law  of  Congress  be 
valid,  and  that  be  the  true  construction  of  it,  any  man  that  pleases 
may  start  out  with  a  pre-expressed  determination  to  commit  any  crime 
he  pleases  against  the  State  of  Kentucky,  with  perfect  immunity  from 
the  State  authorities,  if  he  will  simply  take  a  negro  along  with  him 
when  he  does  the  deed  ;  and  if  he  is  not  so  happy  as  to  have  done  it 
in  the  presence  of  one  of  that  race,  all  he  needs  to  do  is  to  hunt  up  a 
black  man  and  make  a  confession  in  his  presence. 


FORENSIC.  545 

This  is  an  intolerable  grievance,  which  no  State  can  suffer  without 
groans  and  tears,  even  if  it  were  confined  to  great  cases,  where  the 
public  alarm  would  insure  punishment  in  the  Federal  courts  ;  but  it 
extends  to  the  smallest  and  the  lowest  cases  ;  to  that  minute  distribu 
tion  of  justice  which  is  made  by  the  local  magistrates  in  the  townships  ; 
to  assaults  and  batteries  ;  to  small  thefts  ;  to  the  slightest  breach  of 
police  regulations  which  the  law  calls  a  crime.  Upon  the  prompt  and 
speedy  punishment  of  such  offenses  as  these,  the  peace  of  neighbor 
hoods  and  the  morals  of  the  people  depend  far  more  than  on  the  decis 
ion  of  great  causes.  But  in  none  of  these  can  the  State  courts  admin 
ister  justice  if  a  negro  be  affected.  The  District  Court  of  the  United 
States  for  Kentucky  is  filled  now  with  cases  of  assault  and  battery  and 
petty  larceny,  brought  from  every  part  of -the  State.  I  do  not  wish 
to  speak  disrespectfully  of  any  of  my  friend's  friends,  but  I  must  be 
permitted  to  say  (frhat  I  have  the  highest  authority  for  saying)  that 
negroes  have  a  powerful  bump  of  acquisitiveness  in  little  things, 
which  results  frequently  in  producing  a  decided  proclivity  to  stealing. 
The  Solicitor-General  says  that  the  African  race  have  been  Christian 
ized  and  civilized  by  our  benign  institutions — by  which  I  understand 
him  to  mean  slavery  ;  but  he  will  not  pretend,  I  think,  that  slavery  or 
anything  else  has  taught  them  the  difference  between  meum  and 
tuum.  Nor  will  they  ever  learn  it  unless  the  knowledge  is  forced 
upon  them  by  the  law.  But  this  act  of  Congress  deprives  them  of 
the  lessons  which  they  might  otherwise  receive  in  that  stern  but 
wholesome  school. 

If  a  negro  steals  a  hog,  or  robs  a  hen-roost,  the  suffering  party 
must  let  him  run  unpunished  or  else  go  to  Louisville  for  justice,  and 
that  would  cost  twenty  times  as  much  as  the  pigs  and  chickens  are 
worth.  The  consequence  must  be  that  nine  tenths  of  the  lower  class 
of  crimes  committed  by  negroes,  and  by  white  men  under  the  protec 
tion  of  negro  witnesses,  must  go  unwhipped  of  justice.  The  people 
become  totally  demoralized  :  they  graduate  in  crime  from  the  lowest 
to  the  highest,  and  society  is  altogether  broken  up. 

Under  this  law,  a  State  court  in  Kentucky  is  not  able  to  enforce  a 
decree,  sentence,  or  judgment  of  its  own,  even  in  a  case  which  is  ad 
mitted  to  be  within  its  sole  jurisdiction.  Any  black  gentleman,  who 
chooses  to  say  that  it  shall  not  be  carried  into  effect,  can  strike  the 
process  dead  in  the  officer's  hands  ;  and  a  white  man  may  do  it  also  if 
he  does  it  in  the  presence  of  a  negro.  The  judge  thus  insulted  may 
go  up  to  Louisville  and  ask  the  Federal  court  to  punish  the  contempt. 
I  do  not  know  what  answer  would  be  given  ;  but  a  proper  answer 
would  be,  that  no  contempt  can  be  committed  against  the  courts  of 
Kentucky,  because  they  are  utterly  contemptible  already  in  the  eyes 
of  the  Federal  law. 

The  State  of  Kentucky  can  not,  by  the  aid  of  her  judicial  authori- 

35 


54:6  FORENSIC. 

ties,  parry  the  lunge  of  the  most  atrocious  assassin  who  chooses  to  aim 
his  weapon  at  her  heart.  She  can  not  punish  treason  against  the 
State.  A  band  of  negroes  and  white  men,  either,  or  both  united,  may 
organize  themselves  into  "  ranks  and  squadrons,  and  right  forms  of 
war,"  and  march  upon  the  capital  with  an  avowed  determination  to 
depose  the  Legislature  and  the  Governor,  and  to  establish  somebody 
else  in  their  place,  or  to  create  a  civil  war  which  shall  cover  the  whole 
commonwealth  with  blood  and  ashes,  and  although  they  be  taken  red- 
handed  before  they  have  accomplished  the  forcible  overthrow  of  the 
government,  they  can  not  be  punished  in  the  State  courts  if  any  ne 
gro  saw  the  overt  act,  much  less  if  he  was  a  part  of  the  insurrection 
in  his  own  person. 

There  is  another  curious  anomaly  created  by  this  law,  to  which  I 
shall  ask  your  attention,  simply  because  it  is  a  puzzle.  I  know  how 
ingenious  your  honors  are,  but  I  do  not  believe  there  is  a  man  among 
you  that  will  untie  this  knot.  Where  is  the  pardoning  power  in  a 
case  like  the  present  ?  Has  the  President  a  right  to  pardon  an  offense 
against  the  State  of  Kentucky  ?  No.  By  the  Constitution  he  is 
especially  limited  in  the  exercise  of  that  power  to  "  offenses  against  the 
United  States,"  that  is,  offenses  defined  and  made  criminal  by  the 
laws  of  the  United  States.  On  the  other  hand,  suppose  the  Govern 
or  of  Kentucky,  while  this  cause  was  pending,  had  sent  his  pardon 
and  put  it  into  the  hands  of  the  accused  parties,  and  they  had  pleaded 
it,  would  the  Federal  court  have  sustained  that  plea  ?  Or,  suppose 
that  after  they  had  been  convicted,  and  they  were  in  the  hands  of  the 
marshal  for  execution,  the  Governor  had  sent  a  pardon  to  him  ?  The 
marshal  would  have  treated  it  with  contempt.  He  is  acting  under  the 
sentence  of  a  Federal  court,  and  is  not  bound  to  obey  the  executive 
of  the  State  when  he  tells  him  not  to  carry  it  into  effect. 

It  is  no  answer  to  this  to  say  that  the  State  of  Kentucky  might 
relieve  herself  if  she  would  change  a  certain  law,  which  the  Attorney- 
General  and  the  people  of  other  States  have  seen  proper  to  disapprove. 
That  is  her  own  business.  The  rules  of  pleading  and  evidence  which 
she  may  adopt  depend,  and  ought  to  depend,  upon  the  discretion  of 
her  own  Legislature.  Congress  itself  does  not  deny  that  her  people 
may  say  what  the  barons  of  England  said  on  an  occasion  equally  mem 
orable  concerning  a  code  far  more  obnoxious  to  censure — nolumus 
leges  nostras  mutare.  Assume  the  law  in  question  to  be  wrong — con 
cede  that  the  people  of  the  State  close  their  eyes  upon  the  error — ad 
mit  that  they  stubbornly  refuse  to  be  lashed  into  a  repeal — something 
should  be  pardoned  to  the  spirit  of  independence  which  they  have  in 
herited  from  their  forefathers.  No  community,  long  accustomed  to 
freedom,  will  ever  be  driven  into  measures  by  the  dictation  of  those 
who  have  no  right  to  intermeddle  with  them.  All  men  claim  the 
privilege  to  do  as  they  please  in  regard  to  those  things  which  concern 


FORENSIC.  547 

nobody  but  themselves.  Coercion  like  this  has  never  yet  accomplished 
a  good  purpose. 

Men  will  not  reason,  they  only  feel,  when  they  see  the  whip  of  a 
master  held  over  their  heads.  After  the  laws  for  the  punishment  of 
heresy  were  enacted,  in  the  reign  of  Philip  and  Mary,  Archbishop 
Bonner  went  to  Ridley  and  proposed  to  convince  him  of  his  error. 
But  Ridley  said  :  "I  can  receive  no  instructions  from  a  man  who 
comes  to  me  armed  with  a  law  which  enables  him  to  put  me  to  death 
if  I  do  not  agree  with  him  ;  repeal  your  penal  laws  against  me, and  my 
brethren,  and  then  we  will  hear  you  with  pleasure."  Laws  similar  to 
this  were  made  and  carried  into  execution  for  centuries  against  Ire 
land,  with  the  hope  of  extirpating  the  Catholic  religion  ;  but  it  only 
made  them  cling  with  more  tenacity  than  ever  to  the  faith  of  their 
fathers.  The  morning  after  the  Catholic  Emancipation  Bill  was 
passed,  Tom  Moore,  the  poet,  took  up  a  newspaper  in  which  the  fact 
was  announced.  "  It  is  passed,"  said  he,  "  and  now,  thank  God,  I  can 
turn  Protestant  if  I  please,"  by  which  he  meant  to  say,  as  he  after 
ward  explained  it,  that  up  to  that  time  it  was  a  point  of  honor  with 
him  to  stand  by  the  old  Church  right  or  wrong.  But  as  soon  as  the 
penalties  were  removed,  he  took  up  the  subject  and  considered  it  as 
he  had  never  considered  it  before. 

Equally  in  vain  is  it  to  say  that  the  administration  of  justice  by 
the  Federal  courts  will  be  just  and  proper.  I  have  no  right  to  say  that 
anybody  connected  with  the  United  States  Government  in  Kentucky 
has  done  anything  that  was  intentionally  oppressive  or  cruel,  or  meant 
to  produce  the  disorders  which  have  resulted  from  this  law.  I  believe 
that  every  case  which  has  been  tried  in  the  United  States  courts  there 
has  been  disposed  of  conscientiously.  But  it  is  impossible  for  a  single 
court,  situated  upon  the  banks  of  the  Ohio  River,  with  a  great  State 
extending  three  hundred  or  four  hundred  miles  around,  to  administer 
that  local  justice  upon  which  the  peace  of  every  county  and  township 
depends.  The  people  can  not  afford  to  go  there  for  justice ;  they 
would  rather,  do  without  it.  Then,  again,  everybody  revolts  against 
the  idea  of  having  the  domestic  affairs  of  his  community  interfered 
with  by  persons  who,  however  good  they  may  be,  are  strangers  to 
them,  and  whose  rule  is  forced  upon  them  against  their  will. 

The  autonomy  of  a  free  State  is  not  a  thing  to  be  trifled  with.  It 
has  been  contended  for  by  every  friend  of  liberty  in  all  past  time. 
When  Megara  and  Corinth  and  Thebes  lost  that  they  lost  everything, 
and  Athens  justly  forfeited  her  own  independence  by  trampling  on 
that  of  the  other  Greek  cities.  The  free  towns  and  small  principali 
ties  of  Western  Europe  were  contented  and  prosperous  as  long  as  they 
retained  the  right  to  administer  justice  among  themselves,  and  as  soon 
as  some  great  power  took  that  away  they  either  sunk  into  abject  slave 
ry  or  else  were  given  over  to  the  most  frightful  disorders.  This  sys- 


548  FORENSIC. 

tern  of  imperial  regulation  in  domestic  affairs  was  tried  well  in  Ireland 
for  two  hundred  and  fifty  years,  and  for  twenty-five  years  it  was  tried 
equally  well  in  the  southern  departments  of  France.  What  did  it 
produce  ?  White-boyism  in  one  country  and  Chouannerie  in  the 
other. 

In  the  worst  days  of  the  Roman  Empire  it  was  an  established  rule 
that  the  local  customs  and  local  tribunals  of  the  provinces  should  not 
be  interfered  with.  Home  sent  her  pro-consuls  everywhere,  and  they 
behaved  badly  enough  sometimes  ;  but  it  was  their  prescribed  duty  to 
abstain  from  all  interference  in  mere  local  affairs.  You  have  a  case 
on  that  point  reported  in  a  book  which  I  am  sure  some  of  you  have 
read.  When  Gallic  was  the  Roman  deputy  for  Achaia,  with  his  head 
quarters  at  Corinth,  a  set  of  pagan  scallawags  and  carpet-bag  Jews 
caught  the  Apostle  Paul  and  brought  him  up  on  a  charge  that  he  was 
disturbing  the  peace  by  preaching  a  false  religion.  But  Gallio  an 
swered  :  "  If  this  be  a  question  of  words  and  names  and  of  your  own 
law,  look  ye  to  it,  for  I  will  be  no  judge  of  such  matters  "  ;  and  the 
report  adds  that  "he  drave  them  from  the  judgment-seat."  After 
ward,  when  Paul's  accuser  was  riotously  assaulted  in  the  streets,  he 
declined  to  take  jurisdiction  of  that  offense.  "  Gallio  cared  for  none 
of  these  things."  The  imperial  government  did  not  send  him  there 
to  boss  the  police  jobs  of  the  city.  Tiberius  was  the  worst  of  the 
Caesars,  but  he  made  it  the  boast  of  his  reign  that  he  had  not  dis 
turbed  any  separate  community  in  the  enjoyment  of  their  own  laws, 
or  interfered  with  the  local  tribunals  in  the  administration  of  justice. 
Base  as  he  was,  he  understood  the  philosophy  of  jurisprudence  well 
enough  to  know  that  no  people  were  ever  contented,  happy,  or  pros 
perous,  unless  they  were  permitted  to  regulate  their  own  affairs. 

When  the  Bourbons  were  restored  in  1815,  the  king  was  re-invested 
with  all  the  powers  of  the  old  French  monarchy.  But  he  was  obliged 
to  make  a  solemn  promise,  by  treaty  with  his  subjects  and  with  his 
allies,  that  he  would  never  deprive  the  people  of  the  right  to  be  tried 
by  their  natural  judges ;  that  isr  the  local  magistrates,  who,  living 
among  them,  were  responsible  to  them  for  the  righteousness  of  their 
decisions. 

But  if  the  State  of  Kentucky  is  placed  by  the  Federal  Constitution 
in  this  unfortunate  predicament,  I  can  not  help  her  and  neither  can 
you.  I  propose  to  show,  therefore,  that  this  act  of  Congress  is  a 
sheer,  naked,  flat  breach  of  the  Constitution.  My  proposition  is,  that 
the  judicial  as  well  as  the  legislative  and  executive  powers  of  the 
United  States  are  defined  and  limited,  and  that  the  limitation  upon 
the  judicial  power  is  such  that  no  right  exists  or  can  be  vested  by 
Congress  in  the  Federal  judges  to  try  a  case  like  this  one  at  bar,  or  any 
case  at  all  like  it. 

The  judicial  power  of  the  United  States,  granted  in  the  Constitu- 


FORENSIC.  549 

tion  to  this  Government  is  defined  by,  and  limited  in,  the  Third  Ar 
ticle.  The  first  section  declares  that,  "The  judicial  power  of  the 
United  States  shall  be  vested  in  one  Supreme  Court  and  in  such  infe 
rior  courts  as  the  Congress  may  from  time  to  time  ordain  and  estab 
lish."  That  is  a  limitation  ;  you  have  so  decided.  There  is  no  other 
way  in  which  the  judicial  power  can  be  exercised.  It  can  not  be  dele 
gated  to  a  star  chamber,  a  high  commission,  an  ecclesiastical  council, 
or  a  board  of  military  officers,  nor  to  any  other  special  tribunal  impro 
vised  for  the  conviction  of  particular  individuals.  All  power  to  hear, 
decide,  and  adjudicate,  in  civil  or  criminal  cases,  is  confined  to  the 
ordained  and  established  courts. 

The  amount,  quantity,  extent  of  the  judicial  power  which  is  given 
to  the  United  States,  to  be  exercised  by  their  courts,  is  defined  and 
limited  with  equal  clearness  by  the  second  section  of  Article  III. 
What  does  it  say?  "The  judicial  power  shall  extend" — mark  the 
language  ;  there  is  no  English  word  more  significant  for  the  purpose 
of  creating  a  limitation  :  "  the  judicial  power  shall  extend,"  how  far  ? 
Thus  far,  and,  of  course,  no  farther — "to  all  cases,  in  law  and  equity, 
arising  under  this  Constitution,  the  laws  of  the  United  States,  and 
treaties  made,  or  which  shall  be  made,  under  their  authority  ;  to  all 
cases  affecting  ambassadors,  other  public  ministers,  and  consuls  ;  to 
all  cases  of  admiralty  and  maritime  jurisdiction  ;  to  controversies  to 
which  the  United  States  shall  be  a  party ;  to  controversies  between 
two  or  more  States ;  between  a  State  and  citizens  of  another  State ; 
between  citizens  of  different  States  ;  between  citizens  of  the  same  State 
claiming  lands  under  grants  of  different  States,  and  between  a  State, 
or  the  citizens  thereof,  and  foreign  states,  citizens,  or  subjects." 

You  can  not  make  any  kind  of  a  mistake  about  the  cases  over 
which  the  judicial  power  of  the  United  States  constitutionally  reaches. 
It  depends  sometimes  upon  the  nature  of  the  subject-matter,  some 
times  upon  the  character  of  the  parties,  and  sometimes  upon  the  rela 
tion  of  the  parties  to  one  another  ;  but  no  man  will  risk  his  reputa 
tion  for  sanity  by  saying  that  the  power  described  there  extends  to  the 
trial  of  a  case  like  this.  It  can  not  be  ranged  under  any  head  which 
the  Constitution  enumerated.  You  have,  then,  the  judicial  power  of 
the  United  States  limited,  and  limited  so  as  not  to  reach  this  case ; 
and  in  a  government  of  enumerated  powers,  whatever  is  not  given  is 
withheld.  Expressio  unius  exclusio  est  alterius. 

But  our  learned  friends  on  the  other  side  protest  against  a  strict 
construction.  They  think  that  the  powers  of  the  Federal  Government 
ought  to  be  as  liberally  interpreted  as  possible.  I  do  not  know  ex 
actly  what  they  mean  by  a  strict  construction.  I  am  not  asking  for 
any  construction  that  would  have  been  called  strict  by  the  public  men 
of  Virginia  at  the  time  when  that  State  was  in  the  habit  of  furnishing 
Presidents  to  the  Union.  I  do  not  ask  you  to  believe  in  Washington, 


550  FORENSIC. 

and  Jefferson,  and  Madison,  and  Monroe,  and  Jackson,  or  any  disciple 
of  that  set  whose  opinions  were  the  standard  of  political  orthodoxy  for 
seventy  years.  I  believe,  in  my  heart  and  conscience,  that  they  were 
right.  They  were  the  best  and  wisest  men  that  ever  lived  in  all  the 
tide  of  time.  Among  the  statesmen  called  great  in  these  degenerate 
days  not  one  is  worthy  to  stoop  down  and  unloose  the  latchet  of  their 
shoes.  If  there  is  consecrated  ground  on  all  this  earth  it  is  the  tomb 
at  Mount  Vernon,  the  sepulcher  at  Monticello,  and  the  grave  at  the 
Hermitage.  But  I  would  not  endanger  any  cause  at  this  time  of  day 
by  trying  to  sail  as  close  to  the  wind  as  they  did.  I  will  not  ask  you 
even  to  adopt  the  notions  of  such  men  as  Hamilton  and  Adams,  or 
Clay  and  Webster,  who  were  supposed  to  be  rather  loose  in  their  ideas 
of  construction.  I  shall  not  cite  anything  from  Marshall  or  Taney. 
"We  are  an  enlightened  people.  We  have  voted  ourselves  to  be  so, 
and  we  have  learned  to  feel  a  wholesome  contempt  for  our  fathers. 
Therefore  I  consent,  for  my  part,  that  when  you  find  any  opinion 
more  than  ten  years  old,  you  shall  discard  it  at  once,  and  cast  it  aside 
among  the  rubbish  of  the  Dark  Ages.  But  this  is  what  I  do  ask — this 
we  have  a  right  to  demand — this  we  are  sure  to  get,  as  long  as  the 
Supreme  Court  is  allowed  to  stand,  and  as  long  as  the  Constitution  is 
not  formally  abolished  :  that  is  an  honest  construction  of  the  written 
organic  fundamental  law  which  we  all  swear  to  support — such  just 
and  fair  interpretation  of  the  Constitution  as  any  right-minded  man 
would  give  to  any  instrument  containing  a  grant  of  anything,  whether 
it  be  property,  corporate  privileges,  or  political  power. 

By  every  rule  of  interpretation  that  ever  was  invented — by  every 
canon  of  construction  known  among  civilized  or  barbarous  men — by 
every  principle  of  law  and  logic — by  that  good  faith  which  holds  the 
moral  world  together — by  that  decent  respect  which  every  honest  man 
is  bound  to  feel  for  the  common  sense  of  his  fellow  men — you  are 
compelled  to  say  that  nothing  can  be  taken  under  a  grant  which  has 
not  been  given  it.  That  is  not  only  the  natural  construction  of  this 
grant,  but  it  is  expressly  declared  by  the  instrument  itself  that  it  shall 
never  receive  any  other.  The  Tenth  Amendment  says  that  "  the 
powers  not  delegated  to  the  United  States  by  the  Constitution,  nor 
prohibited  by  it  to  the  States,  are  reserved  to  the  States  respectively, 
or  to  the  people."  The  oath  which  binds  us  to  support  the  Constitu 
tion  compels  us  to  give  it  that  interpretation.  Look  also  at  the 
Ninth  Amendment.  Certain  rights  had  been  expressly  mentioned  as 
belonging  to  the  States  and  the  people  in  the  Constitution,  and,  in 
order  that  the  force  of  the  general  words  of  reservation  might  not  be 
weakened  by  the  mention  of  these,  it  was  declared  that  "  the  enumer 
ation  in  the  Constitution  of  certain  rights  shall  not  be  construed  to 
deny  or  disparage  others  retained  by  the  people."  The  framers  of  the 
Constitution  dreaded  the  absorption  of  the  State  authority  and  popu- 


FORENSIC.  551 

lar  liberty  by  the  Federal  Government,  and  they  did  all  that  human 
wisdom  could  do  to  prevent  it,  and  they  took  away  all  color  of  legal 
excuse  from  every  construction  which  might  be  used  to  do  it. 

You  may  adopt  the  loosest  construction  you  can  so  that  it  be  a  con 
struction.  Take  all  the  power  that  is  granted  according  to  the  most  ex 
tended  signification  of  the  words.  Stretch  the  meaning,  as  far  as  you 
possibly  can,  of  every  syllable  which  adds  to  the  power  of  the  General 
Government.  After  doing  this,  take  all  the  additional  power  that  your 
utmost  ingenuity  can  conceive  of  as  necessary  to  carry  the  others  into 
effect.  Then  narrow  down  the  sense  of  every  word  that  expresses  or 
implies  a  right  on  the  part  of  States  or  people.  Do  everything  that 
can  be  done  by  construction  to  magnify  and  increase  the  central  au 
thority — do  nothing  for  liberty — let  every  claim  for  self-government 
be  discountenanced  as  much  as  possible.  Let  the  powers  thus  accu 
mulated  and  extended  by  construction  be  left  in  the  hands  of  the  Fed 
eral  officers  to  be  guarded,  as  no  doubt  they  will  guard  it,  with  "love 
strong  as  death,  and  jealousy  as  cruel  as  the  grave."  But  after  you 
have  gone  as  far  as  any  kind  of  construction  will  carry  you  in  that 
direction,  we  ask  you  to  stop.  Do  not  take  what  is  neither  expressed 
nor  implied  in  the  grant,  for  that  is  not  construction,  but  destruction. 
We  stand  upon  the  outer  limits  of  the  Constitution  and  implore  you 
not  to  pass  that  border. 

I  think  I  can  illustrate  my  idea  of  these  different  sorts  of  construc 
tion  by  reference  to  a  very  old  grant,  I  believe  the  oldest  one  on  record 
of  which  the  terms  are  distinctly  made  known. 

About  the  time  of  the  Trojan  war,  or  a  little  before,  a  Phoenician 
king  was  assassinated  in  the  city  of  Tyre.  His  widow  was  compelled 
to  leave  the  country,  and  she  led  out  a  considerable  colony.  They 
sailed  down  the  Mediterranean,  until  they  came  to  a  place  on  the  north 
west  coast  of  Africa,  which  was  afterward  called  Carthage.  There 
they  concluded  to  make  a  settlement.  But  the  difficulty  was  to  get 
a  foothold  in  the  country  ;  for  the  native  princes  and  people  had  full 
dominion  over  all  the  region  round  about.  After  some  bargaining 
they  got  a  grant,  the  limits  of  which  were  rather  curiously  defined. 
It  authorized  the  grantees  to  take  as  much  ground  as  could  be  inclosed 
by  a  certain  number  of  bulls'  hides.  Inside  of  that  space  the  Tyrians 
were  to  have  political  jurisdiction,  as  well  as  a  proprietary  right  to  the 
soil.  But  it  was  expressly  agreed,  and  all  parties  swore  to  observe  the 
compact,  that  all  the  land  outside  of  the  bull-skins  should  belong  for 
ever  to  the  original  owners,  and  be  controlled  by  their  own  govern 
ments.  In  other  words,  the  powers,  privileges,  and  property,  not  in 
cluded  in  the  grant,  were  reserved  to  the  states  respectively  and  the 
people  who  were  the  grantors.  The  strict,  that  is  to  say,  the  honest 
construction  of  this  grant  would  be  to  take  the  hides  just  as  they 
came  from  the  beasts'  backs  and  lay  them  down,  touching  one  another 


552  FORENSIC. 

in  a  circle  or  a  square.  There  is  a  poetical  tradition  that  one  of  the 
queen's  counselors  proposed  to  do  this  ;  but  he  was  an  old-fashioned 
Jeifersonian,  and  his  advice  was  not  adopted.  The  latitudinarians  cut 
the  hides  up  into  the  narrowest  thongs  they  could  make,  tied  them 
together,  and  in  that  way  included  as  much  land  as  they  needed  for  a 
large  city,  with  a  great  deal  of  outlying  territory  besides.  That  is 
what  I  call  a  .loose  construction  of  Dido's  grant :  but  still  it  was  a 
construction.  It  showed  some  respect  for  the  grant  itself  ;  that  while 
they  were  not  willing  to  be  confined  within,  perhaps,  the  just  limits  of 
it,  they  still  acknowledged  the  obligation  to  stay  inside  of  it,  accord 
ing  to  some  rule.  After  awhile,  however,  they  set  at  naught  even 
their  own  construction,  and  basely  used  the  granted  power  to  strip  the 
grantors  of  the  rights  reserved.  They  went  over  the  lines  set  by 
themselves,  and  took  possession  of  everything.  From  that  day  to  this 
"  Punic  faith  "  has  been  the  synonym  of  treachery  and  falsehood  all 
the  world  over.  The  law  officers  of  the  United  States  are  now  asking 
you  to  sanction  an  act  of  their  Government  precisely  analogous  to  that 
which  made  Carthage  a  proverb  and  by-word  for  cruelty  and  shame. 

The  States  and  the  people  made  a  distribution  of  all  the  power 
which  belonged  to  them.  Some  was  bestowed  on  the  General  Govern 
ment,  and  some  was  retained  by  the  people  and  given  to  the  States,  or 
kept  in  their  own  hands  and  excepted  forever  out  of  the  powers  of  all 
governments.  If  this  be  true,  and  if  it  be  also  true  that  all  parties 
swore  to  observe  the  distribution  just  as  it  was  made,  that  is  to  say,  that 
the  States  should  remain  undisturbed  in  that  portion  of  the  judicial, 
legislative,  and  executive  power  which  was  not  granted  to  the  United 
States,  and  that  the  United  States  should  hold,  not  for  a  day,  but  for 
all  time,  the  powers  that  were  granted  to  them,  I  want  to  know  why 
it  is  any  worse  or  any  better  to  tear  away  the  power  allotted  to  the 
States,  than  it  is  to  take  from  the  Federal  Government  a  function  be 
stowed  upon  it.  If  the  line  of  demarkation  that  was  agreed  to  be  ob 
served  between  the  States  and  the  General  Government  is  to  be 
observed  at  all,  is  it  not  just  as  bad  to  pass  it  in  one  direction  as  it  is  in 
the  other  ? 

If  a  State  says  she  will  not  abide  by  the  distribution,  but  that  she 
will  take  back  and  re-assume  what  was  granted  to  the  General  Govern 
ment,  that  is  manifest  usurpation  ;  and  if  she  proceeds  to  maintain  it 
by  any  show  of  military  force,  every  individual  concerned  in  it  is 
guilty  of  treason.  Now,  will  anybody  tell  me  why  it  is  not  treason 
against  the  State  for  officers  of  the  General  Government  to  usurp  upon 
a  State  by  forcibly  taking  away  from  her  the  rights  plainly  reserved  ? 

There  is  one  argument  against  the  States  which  may  have  much 
influence  with  some  persons.  It  comes,  I  believe,  from  Talleyrand, 
who  laid  it  down  as  a  rule  that  "the  weak  are  always  in  the  wrong." 
Certainly  the  United  States  are  stronger  than  any  State  of  this  Union. 


FORENSIC.  553 

They  have  more  men,  more  money,  and  a  better  organized  physical 
force  to  maintain  any  usurpation  which  they  resolve  upon.  Public 
men  who  desire  to  have  their  talents  well  rewarded  are  sorely  tempted 
to  serve  the  Federal  power.  But  "  we,  the  people,"  who  are  not  poli 
ticians,  and  who  ask  nothing  of  any  government  except  the  privilege 
to  earn  our  bread  and  eat  it,  do  not  understand  that  argument  at  all, 
and  we  never  will ;  nor  do  I  see  how  it  addresses  itself  with  any  force 
to  the  conscience  of  a  judge. 

If  the  judicial  power  of  the  United  States  is  so  limited  that  it  does 
not  extend  to  a  case  of  this  kind,  how  can  you  justify  the  assumption 
of  it? 

Of  your  own  head  you  can  take  no  power  which  the  Constitution 
has  left  in  the  hands  of  the  States,  and  neither  can  Congress  increase 
your  power.  All  the  departments  of  the  Government  can  not  increase 
the  power  of  any  one. 

My  learned  friends  do  not  find,  or  pretend  to  find,  any  grant  of 
judicial  power  which  covers  a  case  like  this  in  the  body  of  the  Consti 
tution,  nor  in  any  of  the  first  twelve  amendments.  The  Fourteenth 
and  Fifteenth  are  also  out  of  all  question,  for  they  were  not  adopted 
when  the  act  of  1866  was  passed.  They  found  their  claim  of  jurisdic 
tion  solely  on  the  Thirteenth  Amendment.  If  that  enlarges  the  ju 
dicial  power,  or  sets  the  line  out  so  far  as  to  take  in  a  case  like  this, 
we  have  no  more  to  say.  But  not  a  word  is  there  to  change  the  origi 
nal  distribution  of  the  judicial  authority.  The  power  of  the  State  is 
left  untouched  to  administer  her  own  laws  for  the  prevention  of  crime 
and  the  preservation  of  order  among  her  own  people.  When,  there 
fore,  they  come  with  their  knife  to  cut  this  pound  of  flesh  from  the 
bosom  of  the  State,  I  tell  them  "it  is  not  so  nominated  in  the  bond." 
But  then  they  tell  us  that  it  is  implied  from  the  necessity  of  carrying 
the  Thirteenth  Amendment  into  effect. 

The  Thirteenth  Amendment  has  no  kind  of  connection,  legal  or 
logical,  with  the  Civil  Rights  Law  of  1866.  That  amendment  executed 
itself.  It  abolished  slavery  or  involuntary  servitude,  except  as  a  pun 
ishment  for  crime.  The  moment  it  was  adopted  the  relation  of  master 
and  servant,  as  it  had  previously  existed  in  the  Southern  States,  was 
dissolved.  The  statute  does  not  profess  to  be  based  on  the  amend 
ment  nor  to  carry  out  the  abolition  of  slavery.  It  speaks  of  slavery  as 
a  thing  of  the  past — as  a  " previous  condition"  of  certain  persons. 
My  learned  colleague  has  demonstrated,  by  reasoning  and  authority 
which  no  man  can  answer,  that  such  legislation  as  this  of  1866  is  most 
inappropriate,  improper,  and  unnecessary  to  carry  out  anything  con 
tained  in  the  Thirteenth  Amendment.  I  leave  that  part  of  the  argu 
ment  where  he  put  it. 

But  I  said  I  would  not  object  to  a  loose  construction  of  the  Consti 
tution,  and  I  will  not  go  behind  my  word.  I  therefore  assume,  for 


554:  FORENSIC. 

the  argument's  sake,  what  is  manifestly  not  true,  that  the  Thirteenth 
Amendment  required  some  act  of  Congress  to  carry  it  into  effect ; 
that  Congress  had  a  right  to  determine  what  law  was  best  for  that 
purpose ;  that  no  matter  how  unnecessary  or  inappropriate  or  im 
proper  this  law  may  appear  to  you,  if  Congress  chose  to  adopt  it  as  a 
means  of  carrying  out  the  amendment,  that  fact  alone  made  it  "the 
wisest,  virtuousest,  discreetest,  best "  that  human  sagacity  could  have 
devised.  In  other  words,  you  are  to  presume  that  everything  is  neces 
sary —  everything  is  appropriate  which  Congress  chooses  to  enact. 
Let  it  be  conceded  that  you  can  not  even  inquire  into  the  necessity  of 
the  law,  nor  deny  its  fitness,  but  that  we  must  just  take  what  is  given 
to  us  and  "ask  no  questions,  for  conscience  sake." 

If  that  construction  is  not  loose  enough,  I  desire  my  friend,  the 
Solicitor-General,  to  tell  me  how  I  can  make  it  looser,  for  he  shall 
have  it  as  loose  as  he  pleases,  so  far  as  this  case  is  concerned.  He 
shall  not  say  that  we  hold  back  the  car  of  improvement  in  the  princi 
ples  of  interpretation. 

But  there  is  one  barrier  which  he  can  not  break — one  limitation 
which  he  will  not  stand  up  and  say  that  anybody  has  a  right  to  trans 
gress.  The  legislation  to  carry  out  one  part  of  the  Constitution  must 
not  violate  another  part ;  it  must  be  within  the  scope  of  the  Constitu 
tion,  consistent  with  its  general  principles,  and  not  either  expressly  or 
impliedly  prohibited.  That  is  fatal  to  this  act,  for  the  jurisdiction  it 
gives  to  the  Federal  courts  in  matters  purely  of  State  cognizance  is  a 
clear  breach  of  the  Third  Article. 

If  that  were  not  the  rule  it  would  always  be  a  question  between 
the  two  parts  of  the  Constitution  which  should  break  the  other  down. 
You  could  resolve  the  whole  Constitution  into  any  one  article  or  one 
clause,  and,  on  pretense  of  carrying  that  out,  with  the  unlimited  pow 
er  of  Congress  to  determine  what  is  appropriate,  you  can  do  anything. 
You  can  establish  a  national  church  ;  you  can  destroy  the  obligation 
of  all  contracts,  make  ex  post  facto  laws,  pass  bills  of  attainder,  confis 
cate  men's  property  behind  their  backs,  and  organize  a  general  system 
of  military  commissions  instead  of  the  courts,  or  you  can  let  the 
courts  stand  and  extend  the  judicial  power  over  every  conceivable 
case  that  may  arise  under  the  laws  of  the  States  ;  you  can  clothe  the 
President  with  the  powers  of  an  absolute  monarch  ;  you  may  suspend 
the  writ  of  habeas  corpus  indefinitely,  by  a  total  repeal  of  the  law 
which  allows  it,  abolish  the  right  of  trial  by  jury,  and  make  a  crimi 
nal  code  for  the  States  as  bloody  as  that  of  Draco,  or  you  may  take 
away  all  protection  from  property  and  life  by  declaring  that  theft  and 
murder  shall  be  counted  among  the  virtues.  I  do  not  say  that  these 
things  would  be  done.  I  think  they  would  not  be  done  immediately. 
But  I  do  say  that  when  you  go  over  the  line  to  which  the  Constitution 
limits  you,  and  take  possession,  upon  any  pretext  whatever,- of  that 


FORENSIC.  555 

unbounded  field  of  power  which  lies  outside,  this  Government  must 
become  an  absolute  despotism  in  theory  and  in  practice.  The  States 
and  the  people  may  be  mercifully  dealt  with,  but  they  will  haye  no 
rights  which  their  rulers  here  are  bound  by  law  to  respect. 

I  think  I  have  shown  that  the  judicial  power  of  the  United  States 
does  not  extend  to  the  punishment  of  offenses  against  the  State  ;  that 
the  power  to  do  that  is  reserved  to  the  States ;  and  that  to  take  this 
power  away  from  the  States  and  vest  it  in  the  Federal  authorities  is  a 
flat  violation  of  the  Third  Article.  You  have,  therefore,  only  one 
alternative  ;  and  that  is  to  say  either  that  the  act  of  Congress  is  void, 
or  else  that  the  Constitution  is  nob  binding. 

But  I  do  not  admit  that  this  case  is  within  the  act  of  Congress. 
The  act  gives  jurisdiction  to  the  Federal  courts  in  "  civil  and  criminal 
cases  affecting  "  the  black  race.  Does  this  affect  them  ? 

The  victim  of  the  murder  was  black,  and  one  or  more  of  the  wit 
nesses  were  of  the  same  color.  I  am  not  going  to  repeat  (for  I  could 
not  do  more  than  repeat)  the  argument  of  my  colleague  [Mr.  Cald- 
well]  upon  the  distinction  which  has  been  taken  between  the  words 
"cause  "and  "case."  You  will  not  see  the  State  of  Kentucky  im 
paled  alive  upon  a  pin's  point  so  sharp  as  that. 

But  that  is  not  the  important  word  in  the  sentence.  The  con 
struction  turns  on  the  meaning  of  the  word  "  affect,"  and  this  court 
decided  long  ago,  in  the  United  States  vs.  Ortega,  that  a  criminal 
case  (or  cause)  affects  nobody  but  the  party  accused  and  the  public. 
That  decision,  indeed,  is  an  old  one,  but  I  suppose  the  war  has  not 
changed  the  English  language.  At  all  events  this  is  a  point  on  which 
you  have  Moses  and  the  prophets,  and  if  you  believe  not  them  you 
would  not  believe  though  one  rose  from  the  dead. 

It  is  argued,  however,  that  the  words  of  this  act  must  not  be  un 
derstood  in  their  popular  or  their  legal  sense,  because  that  would  con 
fine  its  operation  to  cases  in  which  negroes  are  accused,  and  this,  it  is 
said,  would  be  inconsistent  with  the  well-known  feelings  of  Congress 
and  that  portion  of  the  people  whom  Congress  then  represented.  I 
am  willing  to  admit  that  this  law  was  passed  under  the  influence  of 
violent  party  passions,  which  took  the  form  of  extreme  enmity  to  the 
white  people  of  the  South,  and  ultra  benevolence,  it  may  be,  to  the 
blacks.  But  I  deny  that  you  can  incorporate  these  passions  into  the 
statute  by  mere  construction.  The  law  must  be  interpreted  ex  visce- 
ribus  suis.  The  Legislature  speaks  to  the  country  only  through  the 
statute-book.  But  why  is  it  inconsistent  with  the  supposed  feelings 
of  Congress  to  take  Federal  possession  only  of  negro  cases  ?  It  was 
negroes  alone  that  they  desired  to  protect  against  the  alleged  severity 
of  the  State  courts.  This  act  of  Congress  makes  persons  of  the  black 
race  citizens  of  the  State,  and  then  takes  away  from  the  State  all  power 
to  enforce  upon  them  the  duties  and  obligations  of  citizens.  To  ac- 


556  FORENSIC. 

complish  this,  wna  more  was  necessary  than  to  order  that  no  State 
court  should  punish  any  negro  for  any  violation  of  a  State  law  ?  Was 
not  this  carrying  their  party  passions  into  effect  by  appropriate  legis 
lation  ?  And  was  not  this  exactly  what  they  did  when  they  declared 
the  State  courts  incapable  of  trying  any  cause  which  affects  negroes  ? 

Another  authority  is  cited  by  our  opponents — that  of  Alexander 
the  Second,  King  of  Muscovy  and  Autocrat  of  all  the  Russias.  It  is 
said  that  some  of  his  serfs  were  emancipated  in  1861,  and  the  decree 
for  that  purpose  was  followed  by  seventeen  ordinances  much  resem 
bling  this  act  of  Congress.  You  are  urged  to  construe  the  Thirteenth 
Amendment  and  the  Civil  Rights  Bill  so  as  to  make  them  consistent 
with  the  manifest  intention  of  the  American  people  and  their  repre 
sentatives,  to  follow  closely  in  the  footsteps  of  that  enlightened  potent 
ate.  We  are  getting  along  rather  fast  when  the  officers  of  our  law 
can  propose  to  set  aside  the  Constitution  that  was  signed  by  the  sacred 
right  hand  of  George  Washington,  and  by  thirty-nine  others,  only  less 
illustrious  than  he  was,  because  it  happens  to  be  inconsistent  with  the 
decrees  of  the  most  ultra  despotism  in  all  this  world.  It  is  as  much 
a  despotism  to-day  as  it  ever  was.  In  all  those  vast  dominions,  from 
Cronstadt  to  Siberia,  from  the  frozen  ocean  to  the  German  line,  there 
is  not  a  single  freeman.  Ever  since  the  days  of  Ivan  the  Terrible  it 
has  been  a  habit  of  that  despot  to  change  the  relative  rank  of  his 
slaves,  just  as  a  Southern  planter  might  have  promoted  a  field-hand  to 
the  dining-room  or  sent  his  body-servant  out  to  pick  cotton.  But  he 
never  freed  a  human  being.  No  slave  of  his  dares  to  express  a  hope 
of  liberty  for  himself  or  his  children,  except  at  the  risk  of  his  life.  JSTo 
foreigner  sojourning  in  that  country  is  permitted  to  open  his  lips  on 
such  a  subject.  The  government  of  Russia  is  in  sympathy  with  every 
other  despotism,  and  whenever  a  tyrant  wishes  to  fasten  the  shackles 
more  securely  on  the  limbs  of  his  subjects,  the  colossal  power  of  Rus 
sia  is  ready  to  give  him  aid  and  comfort.  You  know  how  effectually 
this  was  done  upon  Hungary.  Does  the  American  Attorney-General 
think  that  the  American  courts  and  juries  ought  to  be  abolished  be 
cause  it  is  the  custom  in  Russia  to  murder  men  by  military  commis 
sions  ?  Will  he  advise  the  President  that  the  States  should  be  deprived 
of  their  autonomy  because  the  will  of  the  Emperor  is  absolute  law  in 
all  his  provinces  ?  Does  he  derive  his  ideas  of  reconstruction  from 
the  same  "enlightened"  source  ?  Is  the  example  of  Nicholas  suffi 
cient  authority  for  a  repetition  in  this  country  of  that  brutal  outrage 
which  he  perpetrated  in  the  capital  of  Poland— which  no  Christian 
man  can  mention  without  blushing — but  which  he  followed,  while  the 
shrieks  of  his  victims  were  yet  ringing  in  his  ears,  with  that  famous 
proclamation,  "  Order  reigns  in  Warsaw  /"  Yes,  it  is  Russian  free-  . 
dom,  Russian  law,  and  Russian  order  that  the  adversaries  of  the 
American  Constitution  have  been  proposing  to  give  us. 


FORENSIC.  557 

It  is  not  from  the  exercise  of  despotic  power,  nor  yeu  from  the 
headlong  passions  of  a  raging  people,  that  we  will  learn  our  duty  to 
one  another.  "When  the  Prophet  Elijah  stood  on  the  mountain-side 
to  look  for  some  token  of  the  divine  will,  he  did  not  see  it  in  the 
tempest,  or  the  earthquake,  or  the  fire,  but  he  heard  it  in  the  "  still 
small  voice "  which  reached  his  ears  after  those  had  passed  by.  We 
have  had  the  storm  of  political  debate  ;  we  have  felt  the  earthquake 
shock  of  civil  war ;  we  have  seen  the  fire  of  legislative  persecution. 
They  are  passed  and  gone,  and  now  if  we  do  not  hearken  to  the  still 
small  voice  which  speaks  to  our  consciences  in  the  articulate  words  of 
the  Constitution  from  the  graves  of  our  fathers,  then  we  are  without 
a  guide,  without  God,  and  without  hope  in  the  world. 


STATE  OF  MISSOUKI  EX  REL.  FKANK  J.  BOWMAN  vs.  E.  A. 
LEWIS  ETAL.,  JUDGES  ST.  LOUIS  COURT  OF  APPEALS. 

IN  THE   SUPREME   COURT   OP  THE  UNITED   STATES. 

ME.  BLACK  said :  This  case  involves  a  point  of  constitutional  law 
deeply  interesting  to  the  whole  community,  and  especially  important 
to  the  party  before  you. 

It  is  very  plain,  very  simple,  and  not  doubtful.  We  may  be  wrong. 
If  we  are,  we  are  so  madly  wrong  that  you  will  decide  it  against  us 
without  hesitation  ;  and  if  we  are  right,  there  can  not  be  much  said 
upon  the  other  side ;  there  is  no  middle  ground  upon  which  you  can 
find  a  halting-place. 

It  is  my  duty  to  define  the  present  position  of  the  case,  and  state 
the  ground  upon  which  we  expect  that  you  will  give  to  us  the  right 
which  we  vainly  asked  for  in  the  State  court  of  last  resort.  We  insist 
upon  it  that  what  we  asked  for  was  a  EIGHT.  We  demanded  an  appeal 
from  the  decision  made  against  us  by  the  local  courts.  Other  people 
of  the  State  had  that  right  undeniably ;  therefore  we  had  it,  for  the 
State  owed  us  the  equal  protection  of  the  law. 

In  view  of  some  assertions  and  insinuations  of  the  other  side,  it 
may  be  necessary  and  proper  for  me  to  say  that  the  authority  of  this 
court  is  not  now  invoked  by  a  man  of  doubtful  character,  or  for  a 
trifling  purpose,  but  that  justice  may  be  done  to  a  most  meritorious 
citizen  who  has  been  foully  wronged.  He  is  a  lawyer,  and  a  sentence 
of  expulsion  from  the  bar  has  been  passed  against  him.  Compared 
to  this,  an  order  that  he  should  be  taken  out  and  shot  would  be  a  visi 
tation  of  mercy.  You  will  surely  admit  that,  if  he  is  innocent,  he 
ought  to  be  relieved.  When  I  say  that  he  is  a  gentleman  who  stands 
in  a  position  as  near  the  head  of  the  bar  in  the  Western  country  as 
any  other  of  his  years  has  ever  reached,  and  that  he  deserves  to  stand 


558  FORENSIC. 

there  by  his  talents  and  his  integrity,  I  say  what  I  do  know — that  is, 
I  know  it  as  well  as  any  fact  of  that  nature  can  be  known  upon  human 
evidence  :  for  it  is  perfectly  impossible  that  the  men  of  Missouri,  who 
are  known  and  honored  throughout  this  whole  country,  would  have 
stood  by  him,  and  walked  with  him  through  the  fiery  furnace  of  this 
persecution,  if  there  had  been  the  least  suspicion  of  moral  unsound- 
ness  about  his  professional  character.  Judge  Wagner  is  associated 
with  us,  not  to  argue  the  case,  but  to  instruct  us  about  it.  We  are 
proud  to  act  under  his  direction  and  guidance.  He  was  the  chief 
judicial  officer  of  the  State  for  many  years  :  he  has  been  equally  an 
ornament  to  the  bench  and  bar :  would  he  sustain  this  plaintiff  in 
error  ?  would  he  defend  and  indorse  him  if  there  was  any  just  reason 
for  a  doubt  about  his  character  ?  No,  he  would  see  him  at  the  bot 
tomless  pit  before  he  would  speak  a  word  in  favor  of  a  corrupt  or  un 
faithful  attorney. 

But  all  this,  I  think,  is  beside  the  present  purpose.  Not  now,  not 
here,  at  another  time  and  in  another  place  it  may  be  very  proper  to 
explode  the  truth  upon  this  organized  band  of  persecutors.  Then 
they  will  hear  some  things  to  be  remembered  as  long  as  they  live. 
Hunting  the  tiger  is  all  very  well,  but  when  the  tiger  begins  to  hunt 
them  they  will  find  the  sport  not  so  pleasant. 

Let  me  go  on  with  my  skeleton  statement  to  show  the  technical 
condition  of  the  case.  This  gentleman  was  practicing  his  profession 
honorably,  uprightly,  ably,  and  successfully,  surrounded  by  all  those 
things  that  should  accompany  a  high  career — "  honor,  love,  obedience, 
troops  of  friends" — when  a  complaint  was  made  against  him  in  the 
Circuit  Court  of  St.  Louis  for  "  malpractice,  deceit,  and  misdemean 
or."  He  pleaded  not  guilty,  and  demanded  a  trial  by  jury.  The 
jury  came,  and  the  trial  proceeded.  It  lasted  a  month,  and  ended 
with  a  verdict  of  guilty.  I  need  not  say  that  my  client  alleges  the 
ruling  of  the  court,  which  drove  the  jury  into  this  verdict,  to  be  all 
wrong.  He  was  treated  throughout  as  one  who  had  no  rights  which 
a  white  man  was  bound  to  respect.  He  asked  for  an  appeal  to  correct 
those  errors.  I  call  them  errors,  because  that  is  the  technical  word, 
and  the  only  word  I  have  a  right  to  use  when  I  am  speaking  in  one 
court  about  the  conduct  of  another.  I  can  imagine  myself  in  a  place 
where  I  might  feel  justified  in  using  a  very  different  and  much 
stronger  term. 

The  appeal  was  given  ;  but  it  took  him  only  into  the  Court  of  Ap 
peals  for  the  city  of  St.  Louis — another  local  court,  elected  by  the 
same  constituent  body.  There  he  encountered  the  same  evil  influ 
ences,  and  the  same  bad  passions,  which  had  caused  his  conviction  in 
the  Circuit  Court.  The  judges  of  the  Court  of  Appeals  affirmed  the 
judgment  of  the  Circuit  Court  with  great  pleasure,  and  refused  him 
an  appeal  to  the  Supreme  Court  with  rapture. 


FORENSIC.  559 

Other  persons  living  and  prosecuted  in  other  counties  of  the  State, 
for  precisely  the  same  offense,  might  appeal  to  the  Supreme  Court  to 
get  an  illegal  judgment  reversed,  and  he  thought  himself  entitled  to 
the  equal  protection  of  the  law.  So  therefore  he  went  up  to  Jefferson 
City  and  asked  the  Supreme  Court  for  a  mandamus  commanding  the 
lower  court  to  allow  an  appeal  and  send  up  its  record  for  revision. 
The  judges  of  the  State  court  of  last  resort  held  that  an  appeal  would 
not  lie,  and  therefore  refused  the  writ  of  mandamus. 

Now,  think  for  a  moment  of  the  circumstances  under  which  this 
demand  was  made  and  refused.  By  the  statute  law  of  the  State,  in 
full  force  for  many  years,  an  attorney  might  be  tried  in  a  civil  court, 
not  for  contempt  of  that  court,  but  for  misbehavior  in  another  court, 
or  for  wrongful  acts  done  in  his  private  office,  unconnected  with  the 
business  of  any  court.  If  convicted,  he  might  be  punished,  not 
merely  by  being  stricken  from  the  rolls  of  that  court,  but  by  total  ex 
pulsion  from  the  profession,  and  disabled  to  practice  in  any  court. 
Observe  :  the  proceeding  is  not  instituted  for  the  preservation  of  dis 
cipline  in  that  particular  court,  but  to  punish  a  general  crime  against 
the  public  justice  of  the  country,  and  this  crime  may  be  prosecuted  in 
a  court  without  criminal  jurisdiction,  without  indictment,  without  a 
grand  jury,  without  the  intervention  of  any  public  accuser,  but  at  the 
instance  of  private  enemies  and  rivals  of  the  party.  A  more  anoma 
lous  law  has  never  been  enacted  ;  a  more  dangerous  instrument  of  per 
sonal  malice  has  never  been  furnished  by  the  legislation  of  any  country. 

I  think  this  law  is  fundamentally  vicious  and  void  all  through, 
because  it  inflicts  the  most  frightful  penalty  for  the  most  infamous 
offense,  without  the  kind  of  accusation  or  trial  which  the  Government 
of  a  free  country  owes  to  every  citizen.  But  while  it  stripped  the 
accused  party  of  some  rights  which  the  meanest  offender  possesses,  it 
left  him  one  great  right  which  made  him  at  least  measurably  safe  :  it 
gave  him  the  right  of  appeal  to  the  highest  tribunal  of  the  State.  It 
gave  original  jurisdiction  to  the  local  courts,  but  declared  that  their 
judgments  might  be  revised,  and,  if  wrong,  reversed  by  the  Supreme 
Court.  The  law  was  a  bad  one  at  the  best,  but  it  had  the  merit  of 
being  equally  bad  for  all  persons  in  every  part  of  the  State. 

But  in  1875  a  change  was  made  in  the  State  Constitution,  and 
among  other  new  provisions  was  this  :  that  in  the  city  of  St.  Louis, 
and  three  adjoining  counties,  the  right  of  appeal  to  the  Supreme 
Court  should  be  taken  away,  while  it  should  continue  to  be  enjoyed 
by  the  inhabitants  of  all  other  counties  and  cities. 

The  present  plaintiff  in  error  suggested  that  this  discrimination 
was  inconsistent  with  the  fourteenth  article  of  the  Federal  Constitu 
tion,  which  secures  to  all  citizens  alike  the  equal  protection  of  the 
law.  He  had  the  profoundest  respect  for  the  judges  of  the  State  Su 
preme  Court,  and  fully  believed  that  if  they  would  take  cognizance  of 


560  FORENSIC. 

his  case  they  would  do  him  justice.  But  they  were  awed  by  the 
words  of  their  State  Constitution.  They  could  not  entertain  an 
appeal  without  declaring  that  the  State  Constitution,  which  forbade 
them  to  do  so,  was  void.  This  was  rather  embarrassing.  They  could 
hardly  be  expected  to  decide  against  the  validity  of  the  Constitution 
under  which  they  held  their  commissions.  No  State  court,  I  believe, 
has  ever  done  this.  They  could  only  declare  their  inability  to  see  the 
conflict  between  the  two  Constitutions.  They  acted  as  Nelson  did  at 
the  battle  of  Copenhagen  when  he  was  signaled  to  take  his  ship  out 
of  action  :  he  put  his  glass  to  his  blind  eye,  and  said  he  saw  no  signal 
of  the  kind.  But  these  judges  did  the  next  best  thing  :  they  refused 
him  his  right  under  the  Federal  Constitution,  and  put  the  record  in  a 
shape  which  enabled  him  to  bring  his  case  here  and  have  it  decided  by 
the  highest  authority. 

The  Supreme  Court  of  the  State  will  be  perfectly  willing  to  hear 
this  appeal  if  you  say  they  are  bound  to  do  so,  and  the  plaintiff  in 
error  will  acquiesce  in  any  decision  which  it  makes,  whether  it  be  for 
him  or  against  him. 

The  principal  question,  the  question  which  lies  at  the  bottom  of 
the  case,  is  this  :  Can  an  appeal  to  the  Supreme  Court  of  a  State  ever 
be  claimed  as  a  right  ?  Or  is  it  a  mere  favor,  which  may  be  refused 
without  injury  ? 

We  think  it  not  only  a  right,  but  a  right  of  inestimable  value.  If 
it  be  conceded  to  one  man  and  refused  to  another  it  is  mere  folly  to 
say  that  they  both  enjoy  the  equal  protection  of  the  law. 

You  and  I  and  all  of  us  know  very  well  that  the  administration 
of  justice  in  the  local  courts  is  always  liable  to  be  seriously  disturbed 
by  ignorance,  prejudice,  personal  hostility  of  the  judges,  and  other 
like  causes.  These  evils  are  greatly  aggravated  by  the  system  of  elect 
ing  judges  now  adopted  in  all  the  States. 

My  own  experience  enables  me  to  count  up  hundreds  of  cases,  in 
which  the  grossest  injustice  would  have  been  done  if  the  decision  of  the 
local  courts  had  stood  unreversed ;  and  there  are  cases  ten  times  as 
numerous  where  right  was  done  according  to  law,  only  because  the 
judges  were  conscious  of  a  control  by  superior  authority.  The  value 
of  the  right  to  appeal  is  incident  more  to  its  existence  than  its  exercise. 
Would  you  be  willing  to  live  in  a  city  or  county  or  other  subdivision 
of  a  State  in  which  no  writ  of  error  could  be  taken  to  correct  the 
wrong  which  might  be  done  by  a  local  court  ?  Having  that  right, 
would  you  be  willing  to  part  with  it  at  any  price  ?  You  might  feel 
secure  in  the  local  courts  if  you  knew  the  judges  to  be  friendly,  or, 
without  their  friendship,  if  you  were  sure  of  their  honesty,  virtue, 
and  learning ;  but  under  any  circumstances  you  would  feel  your 
sense  of  security  greatly  increased  by  the  knowledge  that,  if  wrong 
was  done,  you  had  a  remedy  in  some  superior  court. 


FORENSIC.  561 

The  judges  of  the  Supreme  Court  may  do  wrong  themselves,  for 
they  are  fallible  like  the  rest  of  mankind,  but  the  security  given  by 
their  jurisdiction  arises  out  of  the  fact  that  their  relations  to  the  case, 
and  the  parties,  and  to  the  law  which  they  administer,  are  totally  dif 
ferent  from  those  of  the  inferior  courts  ;  for  they  must  act  upon  rules 
which  apply  to  the  whole  people,  and  which  all  parties  can  .stand  by. 
They  represent  that  public  wisdom  which  is  universally  recognized. 

For  these  reasons,  and  others  equally  good  and  sufficient,  every 
civilized  community  has  provided  itself  with  one  supreme  tribunal 
charged  with  the  duty  of  keeping  the  rest  in  order.  It  is  so  in  France, 
in  Prussia,  and  in  all  the  German  States.  If  it  is  not  so  in  Eussia 
and  Turkey,  it  is  because  in  these  countries  they  have  no  system  for 
'  the  administration  of  justice.  There  the  law  has  no  head  because  it 
has  no  body  and  no  life.  In  England,  ever  since  the  time  of  the  Sax 
on  Heptarchy,  there  was  a  King's  Bench  whose  writs  of  error  ran  into 
every  county.  In  Scotland,  as  soon  as  they  got  rid  of  the  jurisdiction 
exercised  by  the  chiefs  of  the  clans,  they  civilized  the  kingdom  by 
subjecting  all  the  local  courts  to  the  revision  of  one  central  tribunal. 
Before  the  Revolution  the  decrees  of  our  Colonial  courts  could  be  ex 
amined  and  reversed  by  the  Privy  Council,  to  which  they  were  required 
to  send  up  their  records  upon  appeals  properly  taken.  Every  State  in 
the  Union  is  provided  with  a  Supreme  Court,  and  so  is  every  organ 
ized  Territory.  Georgia  tried  for  a  while  to  do  without ;  and  got 
along  badly  enough.  The  consequence  was  so  much  uncertainty  and 
wrong  that  she  was  driven,  by  stress  of  sheer  necessity,  to  do  what  all 
other  States  had  done,  and  make  her  law  uniform  by  means  of  one 
controlling  court. 

What  sort  of  government  would  this  Federal  Government  have 
been  without  the  one  Supreme  Court,  required  by  the  Constitution,  to 
correct  the  errors  of  inferior  Federal  courts  and  reverse  the  false  decis 
ions  of  State  courts  on  questions  of  Federal  law  ?  Would  not  every 
provision  be  differently  construed  at  different  places  ?  What  chance 
would  men  have  of  getting  their  legal  rights  uniformly  and  justly  ad 
ministered  ?  It  is  not  too  much  to  say  that  without  this  sheet-anchor 
of  our  judicial  system  all  the  purposes  of  the  Government  as  expressed 
in  the  preamble  of  the  Constitution  would  be  defeated.  We  would 
have  neither  union,  justice,  tranquillity,  common  defense,  general  wel 
fare,  or  liberty  for  ourselves  or  posterity.  The  right  of  appeal  is  the 
right  preservative  of  all  rights ;  public  safety  and  private  security  are 
alike  involved  in  it — life,  liberty,  property,  all  depend  upon  it. 

I  do  most  devoutly  believe  in  the  right  of  trial  by  jury.  I  think 
it  entitled  to  all  the  veneration  and  respect  which  is  felt  for  it.  It 
has  cost  great  expense  of  blood  and  treasure  to  get  it.  Rather  than 
give  it  up  I  would  pay  over  again  the  whole  original  price.  The  en 
actment  of  the  habeas  corpus  law  was  a  strongly  marked  era  in  the 


562  FORENSIC. 

history  of  the  great  race  from  which  we  sprang ;  and  without  it  no 
people  can  be  altogether  free.  But  sacred  as  these  privileges  are  and 
ought  to  be,  I  would  surrender  them  both,  rather  than  lose  my  right 
of  appeal  from  false  and  oppressive  judgments  of  the  local  courts. 
Perish  the  writ  of  habeas  corpus,  perish  the  trial  by  jury,  but  save 
me  the  great  privilege  of  appeal.  Armed  with  this,  I  can  defy  the 
malice  of  my  enemies  in  the  lower  courts.  Political  prejudice,  relig 
ious  bigotry,  personal  spite,  may  do  their  worst  if  I  can  have  my  rights 
measured  at  last  by  "the  golden  metewand  of  the  law." 

I  do  not  deny  that  an  American  State  may,  if  a  majority  so  please, 
abolish  the  right  of  appeal,  trial  by  jury,  and  habeas  corpus.  A 
State  may  make  its  government  as  tyrannical  as  it  pleases,  provided 
it  does  not  go  to  the  extent  of  being  unrepublican  ;  and  even  then  I  do 
not  see  how  you  can  reform  it.  But  since  the  Fourteenth  Amendment 
these  fundamental  rights  must  be  given  to  all  of  the  people  alike  ;  all 
are  entitled,  by  the  Federal  Constitution,  as  well  as  natural  justice,  to 
"the  EQUAL  protection  of  the  law."  The  State  can  not  make  free 
institutions  for  one  class  while  another  is  held  down  by  oppression. 
The  trial  by  jury  must  be  given  to  all  or  none.  The  writ  of  habeas 
corpus  can  not  be  confined  to  one  class  or  one  place  while  others  are 
excluded  from  the  privilege.  The  people  of  a  hundred  and  nine 
counties  in  Missouri  can  not  make  a  Supreme  Court  for  their  own  use, 
and  refuse  to  share  the  blessing  of  an  appeal  to  it  with  the  people  of 
the  other  four.  Why  ?  Because  that  is  manifestly  not  giving  to  all 
citizens  the  equal  protection  of  the  law. 

It  is  said  that  the  object  of  the  Fourteenth  Amendment  was  to 
make  the  negro  equal  to  the  white  man.  As  a  historical  fact  I  sup 
pose  that  is  true.  But  to  effect  their  objects  the  framers  of  the 
amendment  were  obliged  to  use  words  so  general  that  all  men  are 
made  equal.  It  is  preposterous  to  say  that  a  provision  for  the  perfect 
equality  of  all  men  can  be  used  only  for  the  benefit  of  a  class — the  dis 
tinction  between  classes  being  the  very  thing  prohibited.  I  think  I 
can  prove  that  no  distinction  can  be  made  under  this  amendment  be 
tween  different  classes  of  white  men  as  easily  as  I  can  demonstrate  a 
geometrical  problem.  Suppose  you  have  two  white  men  and  one 
negro,  whose  civil  right  it  becomes  your  duty  to  measure.  You  know 
very  well  that  the  negro  is  exactly  equal  to  either  one  of  the  whites, 
and  they  are  both  equal  to  him.  You  can,  therefore,  make  no  differ 
ence  between  the  negro  and  the  white  men,  and  therefore  you  can  not 
distinguish  between  the  white  men  themselves,  because  things  that  are 
equal  to  the  same  are  equal  to  one  another.  Is  not  that  as  certain  as 
mathematics  ? 

If  a  State  Constitution  would  provide  for  a  Supreme  Court,  to 
which  none  but  white  men  should  appeal,  compelling  all  negroes  to 
suffer  whatever  wrong  might  be  inflicted  by  the  local  courts,  no  man 


FORENSIC.  563 

would  insult  you  by  asserting  in  your  presence  that  the  negro  and  the 
white  man  were  equally  protected.  If  the  negroes  got  possession  of  a 
State  government  and  would  exclude  all  white  men  from  the  right  of 
appeal,  would  not  that  be  just  as  bad  ?  The  color-line  is  not  a  worse 
division  than  another  line  which  might  be  run  across  it  at  right  an 
gles  ;  that  is  to  say,  a  division  of  the  people  into  two  classes  without 
regard  to  race.  Suppose,  for  example,  that  the  right  of  appeal  be 
given  only  to  persons  of  a  certain  religion,  or  certain  political  princi 
ple,  would  you  stand  that  ?  Certainly  not ;  and  your  answer  in  the 
negative  would  not  depend  in  any  degree  upon  the  color  of  the  per 
sons  affected.  Many  absurd  distinctions  might  be  imagined.  But  the 
most  senseless  and  unreasoning  that  ever  was  invented  is  a  distinction 
based  on  local  habitation.  People  who  live  in  the  mountain  ranges  of 
the  State  shall  have  an  appeal ;  but  those  who  cultivate  the  alluvial 
lands  of  the  valleys  shall  have  none.  "Writs  of  error  shall  run  into  the 
wheat-producing  counties  ;  but  in  the  cotton-growing  regions  all  men 
shall  be  at  the  mercy  of  the  local  magistrate.  In  the  rural  districts 
the  courts  of  original  jurisdiction  shall  administer  justice  according  to 
the  law  of  the  State  as  expounded  by  the  Supreme  Court ;  but  in 
large  cities,  where  law  is  needed  much  more,  vice  and  wickedness  may 
riot  unchecked. 

If  you  can  exscind  four  counties  from  the  rest  of  the  State,  and  put 
them  out  of  the  pale,  you  can  make  smaller  subdivisions  for  the  same 
purpose  ;  you  can  disfranchise  the  people  of  a  township,  for  instance. 
Suppose  your  State  Constitution  declared  that  a  ward  in  St.  Louis 
shall  elect  its  own  magistrates,  to  be  called  judges,  justices,  aldermen, 
lynch  courts,  regulators,  or  vigilance  committees — what  you  will — but 
they  shall  have  unlimited  jurisdiction,  and  decide  all  causes  without 
appeal  or  writ  of  error — what  sort  of  a  ward  would  it  be  ?  Another 
Alsatia,  filled  with  dangerous  criminals,  among  whom  no  honest  man 
could  show  his  face  with  safety.  And  why  would  honest  men  be  un 
safe  in  such  a  place  ?  Because  there  the  inhabitants  have  not  the 
equal  protection  of  the  law.  Wanting  the  right  of  appeal  from  the 
local  courts,  they  are  destitute  of  everything  that  can  be  called  a  legal 
right,  or,  what  is  the  same  thing,  without  adequate  remedy  for  any 
wrong. 

Mr.  JUSTICE  STRONG. — I  wish  to  ask,  Mr.  Black,  if  a  writ  of  error 
or  appeal  can  ever,  in  any  case,  take  up  a  judgment  from  the  St.  Louis 
Court  of  Appeals  to  the  Supreme  Court  of  the  State  ;  or  are  the  de 
crees  of  the  St.  Louis  Court  of  Appeals  always  final  by  their  present 
Constitution  ? 

Mr.  BLACK. — No,  not  always.  In  some  cases,  or  classes  of  cases, 
the  St.  Louis  Court  of  Appeals  is  merely  intermediate. 

SENATOR  EDMUNDS. — The  St.  Louis  Court  of  Appeals  is,  by  its 
structure  and  jurisdiction,  an  inferior  court. 


564  FORENSIC. 

[The  Senator  handed  to  Mr.  Black  the  Constitution  of  the  State, 
from  which  Mr.  Black  read  the  section  which  created  the  St.  Louis 
Court  of  Appeals,  and  defined  its  powers.  ] 

Mr.  JUSTICE  STRONG. — I  asked  for  information,  not  knowing  the 
state  of  the  facts.  Something  might  depend  upon  the  question  I  put. 
If  the  Constitution  established  two  separate  and  independent  Supreme 
Courts  for  different  parts  of  the  State,  dividing  the  territory,  for  in 
stance,  by  the  Missouri  River,  perhaps  it  could  not  be  said  that  the 
people  north  of  the  river  were  not  as  well  protected  as  those  on  the 
south. 

Mr.  BLACK. — Perhaps  not.  The  protection  of  both  would  be 
equally  bad.  Of  two  appellate  courts,  equal  in  authority,  and  both 
exercising  final  jurisdiction  within  their  respective  territorial  limits, 
it  could  not  be  said  that  either  was  supreme.  They  would  be 
local  courts,  with  unlimited  power,  like  those  which  Georgia  suffered 
under,  and  only  a  little  better  by  being  two  instead  of  five.  But  this 
is  mere  speculation.  In  fact,  and  in  truth,  this  St.  Louis  Court  of 
Appeals  is  local,  and  inferior  in  its  origin,  object,  and  purpose  ;  in  its 
nature  and  character ;  in  the  mode  of  appointing  its  judges  ;  in  the 
source  of  their  compensation,  for  they  are  paid  as  well  as  elected  by 
the  exscinded  counties,  and  not  by  the  State  ;  it  is  local  by  its  very 
name.  It  is  not  made,  and  can  not  be  expected,  to  administer  the  law 
of  the  land — the  lex  terra — which  prevails  elsewhere  in  the  State. 
That  it  hears  causes  by  way  of  appeal,  does  not  make  it  less  danger 
ous  to  the  rights  of  citizens  than  it  would  be  if  it  had  only  original 
jurisdiction.  Two  local  courts  are  not  a  whit  better  than  one.  If  I 
want  the  laws  of  the  State  applied  to  my  case,  it  is  mere  mockery  to 
tell  me  that  one  judge  of  a  city  court  is  more  likely  to  give  it  to  me 
than  another,  both  being  under  the  same  influences,  and  responsible  to 
the  same  constituent  body. 

If  your  honors  will  say  that  my  client  in  this  case  shall  have  an 
appeal  to  the  Supreme  Court  of  the  State,  and  thus  get  the  equal 
protection  of  the  law  as  there  expounded,  you  will  interpret  the  Four 
teenth  Amendment  beneficently,  according  to  its  letter  and  spirit. 
And  the  judgment  in  this  case  will  be  consonant  to  all  your  past  de 
cisions  on  this  subject,  as  those  decisions  are  now  universally  under 
stood. 


FORENSIC.  565 

THE  McGARRAHAN  CLAIM, 

BEFOEE    SENATE    COMMITTEE   ON   PUBLIC   LANDS. 

Senators :  The  patience  with  which  you  have  examined  the  details 
of  this  case,  and  listened  to  the  minute  criticism  of  counsel  upon 
every  part  of  it,  assures  me  that  you  will  give  your  attention  to  the 
more  general  views  of  the  subject  which  I  have  to  present.  Hear  me 
for  my  cause  ;  believe  me  for  the  sake  of  justice,  and  have  respect 
unto  the  testimony,  that  you  may  know  the  truth. 

What  is  it  that  the  claimants  desire  Congress  to  do  for  them  ? 
The  memorial  sets  forth  as  a  fact  that  on  the  14th  day  of  March, 
1863,  a  patent  was  regularly  issued,  signed  by  the  President,  sealed, 
recorded  in  the  General  Land-Office,  and  in  all  respects  completely 
executed,  except  that  it  was  not  countersigned  by  the  Eecorder  ;  that 
on  this  instrument  the  patentee  brought  suit  and  failed  to  recover, 
solely  by  reason  of  the  Recorder's  failure  to  sign  it ;  that  this  defect 
being  merely  clerical,  he  prays  you  to  give  him  the  remedy  of  a  stat 
ute  which  will  either  compel  the  Recorder  to  affix  his  signature  nunc 
pro  tune,  or  else  declare  the  patent  to  be  good  without  it.  There  is  a 
prayer  also  for  general  relief. 

I  admit  that  if  he  was  then  entitled  to  a  patent  and  he  got  a  de 
fective  one,  it  ought  to  be  amended ;  if  the  patent  was  improperly 
refused  to  him  a  new  one  ought  now  to  be  issued,  and  the  Land-Office 
is  bound  to  do  this  without  legislative  compulsion.  If  we  assume  that 
Gomez  was  the  honest  and  true  owner  of  the  land — that  his  claim  had 
been  heard  and  finally  determined  in  his  favor  by  the  proper  judicial 
authorities,  and  that  a  regular  patent  would  have  been  but  a  due  exe 
cution  of  the  decree  in  his  favor — then  we  can  make  no  objection  to 
anything  which  will  secure  him  or  his  assignees  in  their  just  rights. 
The  arbitrary  refusal  of  a  ministerial  officer  to  execute  the  judgment 
of  the  court  can  not  deprive  the  claimant  of  property  which  the 
judgment  proves  to  be  his. 

But  you  know  from  the  conclusive  evidence  of  the  records  that  he 
had  no  decree  in  his  favor  ;  there  was  a  decree  against  him,  and  there 
fore  he  had  no  more  title  to  the  land  in  question  than  he  had  to  this 
Capitol.  His  claim  was  fraudulent  and  void.  That  is  a  fixed  fact, 
immovably  established  by  the  solemn  judgment  of  the  Supreme  Court. 
The  final  decree,  made  by  the  tribunal  of  last  resort,  nullified  all  pre 
vious  patents,  and  made  it  impossible  for  any  subsequent  patent  to  be 
lawfully  issued.  The  question,  therefore,  whether  a  patent  was  made 
out  and  signed  in  1863  or  not,  has  no  importance  whatever  in  its  bear 
ing  upon  the  legal  rights  of  these  parties.  Whether  signed  or  un 
signed,  it  was  equally  worthless. 

The  treaty  of  Guadalupe  Hidalgo  transferred  the  public  domain 
in  California  to  the  United  States,  coupled  with  a  stipulation  for  the 


566  FORENSIC. 

protection  of  all  private  titles  lawfully  made  by  Mexico,  previous  to 
the  conquest.  After  the  war  many  titles  to  the  most  valuable  lands  in 
the  country  were  set  up.  Some  of  them  were  true,  and  many  were 
false.  To  carry  out  the  terms  of  the  treaty  in  good  faith,  and  at  the 
same  time  protect  American  settlers,  Congress  provided  for  a  Com 
mission  to  ascertain,  settle,  and  determine  what  claims  were  false,  and 
what  were  true.  Any  person  having  a  Mexican  claim  to  land  might 
come  before  the  Commission  and  show  his  title — that  is  to  say,  insti 
tute  a  suit  against  the  United  States  for  the  confirmation  of  his  claim. 
Either  party  (the  claimant  or  the  Government)  might  appeal  from  the 
decision  of  the  Land  Commission  to  the  District  Court,  and  from 
the  District  to  the  Supreme  Court.  It  is  manifest  that  this  raised 
a  purely  judicial  question.  Beyond  all  doubt  the  legal  and  equitable 
rights  of  the  parties  depend  solely  upon  the  determination  of  the 
court  in  which  the  suit  is  instituted,  or  to  which  it  is  taken  by  appeal. 
The  final  decree  is  as  a  plea  on  estoppel,  and  as  evidence  conclusive 
upon  the  parties  to  the  record,  and  upon  all  persons  claiming  by, 
through,  or  under  them. 

After  a  claim  has  been  confirmed  by  the  court  of  last  resort,  or 
after  it  is  confirmed  by  one  of  the  inferior  courts,  and  the  United 
States  acquiesces  in  the  decree,  on  the  ground  that  the  claimant's  title 
is  good  and  ought  not  to  be  further  contested,  a  survey  may  be  made 
and  patent  issued.  But  a  survey  or  patent  is  wholly  illegal,  and 
therefore  wholly  void,  if  made  or  issued  pending  the  proceedings  for 
confirmation,  or  after  the  final  rejection  of  the  claim.  The  law  which 
authorizes  a  survey  and  patent  expressly  confines  the  power  to  cases  of 
finally  confirmed  claims.  Knowingly  and  willfully  to  issue  a  patent 
pending  the  proceedings  to  confirm  it,  or  after  the  rejection  of  it,  is 
certainly  a  criminal  misdemeanor,  for  which  the  officers  who  commit 
it  might  be  indicted  and  impeached. 

If  you  find  yourselves  troubled  with  doubts  on  this  subject,  your 
minds  will  be  settled  by  looking  at  the  opinion  of  Chief-Justice  Taney 
in  United  States  vs.  Pacheco  (20  Howard,  261).  But  the  point  is  too 
clear  on  principle  to  need  the  support  of  authority.  It  can  not  be 
that  a  patent  professing  to  be  founded  on,  and  authorized  by,  a  judi 
cial  decree  is  valid  if  inconsistent  with  the  decree. 

The  patent  and  the  survey  are  ministerial  acts.  They  are  not 
judgment,  but  execution.  Like  all  executions,  they  must  follow  the 
judgment  and  conform  to  it  strictly.  They  must  include  no  land, 
except  that  which  the  decree  awards  to  the  claimant.  No  plaintiff  in 
a  common  law  action  of  debt  has  ever  thought  that  he  could  take  out 
a  fieri  facias  before  he  got  judgment,  or  make  a  levy  after  judgment 
for  the  defendant.  Yet  he  might  do  so  as  legally  as  this  claimant 
could  get  a  patent  upon  his  rejected  claim. 

Gomez  brought  suit  against  the  Government  for  a  certain  tract  of 


FORENSIC.  567 

land  which  he  averred  had  been  granted  to  him  by  the  Mexican  Gov 
ernment.  The  Land  Commission  rejected  his  claim,  and  he  appealed 
to  the  District  Court.  There  he  got  a  decree  of  confirmation,  from 
which  the  United  States  appealed  to  the  Supreme  Court.  In  the  Su 
preme  Court  the  claim  was  rejected.  He  says  now  that  while  the 
question  of  title  was  sub  judice,  and  before  its  final  rejection,  he  got  a 
patent  from  the  Land-Office.  What  if  he  did  ?  The  patent  was  void. 
It  was  in  direct  conflict  with  the  decree.  It  had  no  more  force  than  a 
blank  piece  of  parchment.  What  is  the  use  of  inquiring  whether  a 
paper  was  formally  executed  or  not,  when,  in  either  case,  it  is  equally 
good  for  nothing  ? 

I  do  not  admit  that  a  patent  was  ever  made.  I  only  concede  the 
allegation  to  be  true  for  the  purposes  of  the  argument.  I  insist  upon 
it  that,  patent  or  no  patent,  our  rights  and  those  of  the  claimant  were 
exclusively  settled  in  the  courts. 

Perhaps  the  suggestion  of  the  memorialist,  that  he  failed  in  his  last 
suit  solely  because  the  patent  was  not  countersigned  by  the  Recorder, 
is  entitled  to  some  explanation.  The  action  referred  to  was  ejectment 
brought  by  McGarrahan  against  the  New  Idria  Company.  At  the 
trial  the  plaintiff  showed  what  he  calls  the  record  of  his  patent,  and 
the  defendants,  relying  less  on  their  own  strength  than  on  the  weak 
ness  of  their  adversary's  case,  did  not  produce  the  record  of  the  final 
decree,  or  any  other  proof  of  title  in  themselves.  Practically,  the  case 
went  to  the  court  on  a  demurrer  to  the  plaintiff's  evidence,  and  the 
question  of  law  raised  was  whether  the  patent  or  the  record  thereof  as 
exhibited  did  proprio  vigore  vest  any  title  in  the  plaintiff.  This  ques 
tion  divided  itself  into  many  points,  which  were  elaborately  debated. 
The  State  court  decided  it  against  the  plaintiff,  for  the  reason  that 
the  patent  appears  on  its  face,  and  by  its  own  recitals,  to  have  been 
issued  pending  an  appeal  in  the  proceeding  for  confirmation.  The 
plaintiff  took  a  writ  of  error  to  the  Supreme  Court  of  the  United 
States,  where  the  judgment  was  affirmed  for  a  different  reason,  name 
ly,  that  the  draft  of  a  patent  is  nothing  without  the  signature  of  the 
Recorder,  which  this  one  did  not  pretend  to  have.  In  the  State  court 
the  patent  was  held  to  be  void  ;  in  the  Federal  court  it  was  decided  to 
be  no  patent  at  all.  The  two  courts  began  the  consideration  of  the 
case  at  different  ends  of  the  subject-matter,  and  each  at  the  first  step 
found  a  defect  in  the  paper  relied  on  so  fatal  that  it  was  unnecessary 
to  go  further. 

How  would  this  justify  an  act  of  Congress  to  make  them  a  patent 
now  ?  If  they  got  one  that  was  void,  because  it  was  based  on  a  fraud 
ulent  grant,  will  you  take  it  up  and  give  them  another  which  must  be 
equally  void  for  the  same  reason  ?  If  they  got  none,  will  you  pay  a 
premium  on  their  failure  by  making  it  falsely  appear  to  have  been  a 
success  ?  Remember,  you  are  asked  to  give  them  a  title  for  land 


568  FORENSIC. 

which  they  and  you  and  all  of  us  know  to  be  the  property  of  other 
persons.  The  decree  of  the  Supreme  Court  settled  that,  and  you  can 
not  unsettle  it,  or  rejudge  the  justice  that  was  done  there.  Our  right, 
resting  on  that  solid  foundation,  can  not  be  moved  by  the  united 
strength  of  forty  thousand  patents,  signed  by  as  many  Recorders. 

At  the  same  time  the  same  court,  and  that  the  highest  in  the  na 
tion,  adjudged  the  title  now  urged  against  us  to  be  fraudulent  and 
void.  That  destroyed  the  case  past  all  hope  of  revival.  McGarrahan 
himself  admits,  in  one  of  his  letters,  that  it  was  killed  in  the  Supreme 
Court.  It  was  not  only  put  to  death ;  it  was  condemned  to  be  hung 
in  chains  ;  it  was  gibbeted  in  the  face  of  the  world  as  a  wretched 
fraud.  There  is  no  power  in  this  country  that  can  take  it  down. 

When  I  implore  you  not  to  interfere  with  our  rights  thus  legally  ac 
quired,  I  am  asking  only  that  you  observe  a  rule  of  property  regarded 
as  sacred  by  every  civilized  Government,  and  absolutely  necessary  to 
the  security  of  all  the  people.  An  act  of  Congress  to  take  this  land 
from  the  owners,  who  hold  it  under  the  United  States,  and  give  it  to 
others  who  have  no  claim,  except  what  is  based  on  an  adjudicated 
fraud,  would  be  an  outrage  upon  private  rights  so  shocking  and  so 
shameful  that  it  is  not  to  be  thought  of  for  a  moment.  No  act  of 
Congress,  having  such  a  wrong  for  its  ultimate  object,  can  ever  be  car 
ried  into  effect  until  the  Constitution  is  wiped  out,  and  the  courts 
cease  to  perform  their  functions. 

But,  -though  we  are  legally  safe  against  any  attempt  to  legislate  us 
out  of  our  property,  it  would  cost  us  much  inconvenience  to  defend 
our  rights  against  such  an  adversary  as  ours,  if  armed  with  even  an 
unconstitutional  act  of  Congress.  The  slightest  encouragement  from 
you  would  impel  him  to  another  series  of  suits.  This  would  indeed 
be  vanity,  but  it  would  also  be  great  vexation  of  spirit. 

Mr.  K.  P.  Hammond,  specially  appointed  for  that  purpose,  went 
to  the  ground,  and  ascertained  how  it  was  occupied.  He  has  reported 
officially  that  many  persons,  besides  the  New  Idria  Company  and  its 
employes,  are  settled  within  the  limits  of  the  claim  as  now  denned. 
Their  holdings  have  probably  but  little  value,  except  what  their  own 
improvements  have  given  to  them.  They  have  no  representative 
here  ;  their  poverty  makes  them  defenseless.  In  the  name  of  all  these 
persons,  and  for  the  sake  of  others  in  like  condition,  I  beg  you  to 
speak  with  solemn  emphasis,  when  you  assure  them  that  you  can 
not  and  will  not  subject  their  homes  to  the  sack  and  pillage  of  these 
fraudulent  claimants. 

Thus  far  I  have  spoken  only  of  the  legal  relations  existing  be 
tween  the  claimants  and  the  alienees  of  the  United  States.  I  deny 
your  power  to  take  away  the  land  to  which  private  parties  have 
acquired  rights  from  the  Government.  But  so  far  as  respects  that 
portion  which  up  to  the  present  time  remains  unsold  and  unoccupied, 


FORENSIC.  569 

it  is  public  property,  and  you  can  dispose  of  it  as  you  please.  You 
may  bestow  it  on  these  claimants  as  a  gratuity,  if  you  think  they  de 
serve  it. 

But  they  do  not  deserve  it.  We  protest  against  a  legislative  grant 
even  though  it  may  not  affect,  or  be  intended  to  affect,  any  individ 
ual  rights.  Perhaps  the  Supreme  Legislature  of  the  nation  has  power 
to  gratify  the  rapacity  of  these  people  by  robbing  the  Government  of 
its  lands  not  already  disposed  of  to  others,  but  such  an  act  is  forbid 
den  by  moral  considerations  which  ought  to  be  as  strong  as  any  con 
stitutional  interdict. 

Who  are  these  claimants,  and  what  are  the  merits  on  which  they 
base  a  demand  for  the  special  intervention  of  Congress  in  their  be 
half  ?  We  shall  see. 

The  original  claimant  was  Vicente  P.  Gomez.  He  first  set  up  a 
title  in  himself  as  the  immediate  grantee  of  the  Mexican  Government. 
In  his  name  the  proceeding  to  confirm  it  was  instituted  and  carried  on 
through  all  its  stages.  But  at  a  very  early  period  he  made  a  deed 
conveying  an  undivided  half  to  Pacificus  Ord.  Gomez  and  Ord  were 
then  equal  partners,  and  so  continued  until  Gomez  sold  his  remaining 
interest  to  McGarrahan.  Since  that  time  Ord  and  McGarrahan  have 
prosecuted  the  claim  for  their  joint  benefit,  the  latter  being  more 
active,  but  always  recognizing  Ord's  right,  and  holding  him  respon 
sible  for  half  the  expenses.  McGarrahan  himself  swore  in  your  pres 
ence  that  Ord  never  released  his  share,  and  that  he  had  acted  for  him 
under  a  power  of  attorney.  Whatever  they  get  out  of  the  claim  by 
the  present  proceeding,  or  any  other,  must  enure  jointly  to  Ord  and 
him  both.  They  are  hunting  in  couples,  and  the  prey  they  pull  down 
must  be  divided  between  them. 

Now  we  assert  that  neither  Gomez,  nor  the  firm  of  Gomez  and 
Ord,  nor  the  firm  of  Ord  and  McGarrahan,  nor  any  member  of  these 
partnerships,  ever  did  or  suffered  anything  which  entitles  them  to  leg 
islation  of  any  kind  for  their  relief. 

I  will  give  the  story  of  their  wrongs  as  strongly  as  they  themselves 
have  ever  recited  them,  condensing  their  voluminous  arguments,  peti 
tions,  and  letters  into  as  few  words  as  possible,  and  leaving  out  the 
coarse  and  violent  language  in  which  they  have  clothed  their  com 
plaint. 

Gomez,  they  say,  had  a  good  Mexican  title  to  the  property  in  ques 
tion.  In  the  integrity  of  his  heart  he  petitioned  the  Land  Commis 
sion  to  confirm  it,  and,  failing  there,  he  appealed  by  his  proper 
attorney  to  the  District  Court,  where  it  was  legally  confirmed.  This 
just  decree,  thus  righteously  obtained,  ought  to  have  stood  unmoved  as 
a  final  adjudication  between  him  and  the  Government ;  but  it  was 
not  permitted  to  remain  undisturbed.  On  the  contrary,  the  judge  de 
clared  that  he  had  been  imposed  upon,  struck  it  from  the  record  as  a 


570  FORENSIC. 

fraudulent  nullity,  and  gave  notice  to  the  claimant  that  he  must  show 
his  title  before  it  could  be  confirmed.  This  judge  died,  and  was  suc 
ceeded  by  another  more  upright  judge,  who  reinstated  the  decree  of 
confirmation.  The  enemies  of  the  claimant  then  went  the  extreme 
length  of  appealing  to  the  Supreme  Court.  The  Supreme  Court 
wickedly  sustained  the  appeal  in  the  face  of  the  claimant's  protesta 
tions.  The  judges  forced  him  to  face  the  proofs,  heard  the  cause, 
and  after  full  debate  unanimously  decided  his  claim  to  be  fraudulent 
and  void.  This  decision  was  false.  The  judges  were  corrupt,  and 
their  opinions  in  the  case  were  full  of  lies. 

Such  are  the  grievances  he  suifered  at  the  hands  of  a  dishonest 
judiciary.  But  by  his  account  the  Executive  Departments  were 
harder  on  him  still.  When  his  title  was  laid  before  the  Attorney-Gen 
eral  it  was  so  perfect,  and  accompanied  by  proofs  which  showed  its 
genuineness  so  clearly,  that  all  opposition  to  it  should  have  been  in 
stantly  withdrawn.  But  that  officer  refused  to  perform  his  obvious 
duty.  Instead  of  aiding  the  claimant  to  get  justice,  he  commenced 
a  system  of  malignant  persecution  against  him.  The  Attorney-Gen 
eral's  office,  through  several  administrations  and  under  many  heads,  so 
far  from  admitting  the  known  truth,  that  this  was  an  honest  claim, 
denounced  it  as  an  impudent  fraud.  Not  only  was  the  machinery  of 
the  office  used  to  defeat  it,  but  the  heads  of  the  office  made  common 
cause  with  the  alienees  of  the  United  States,  and  accepted  the  aid  of 
their  counsel  in  the  wicked  work.  They  insisted  upon  taking  the 
case  into  the  Supreme  Court,  where  the  claimant  was  utterly  unwill 
ing  to  go.  They  argued  it  there,  and  furnished  the  facts  and  reasons 
which  the  judges  used  in  their  lying  opinions  as  an  excuse  for  their 
corrupt  decrees. 

But  worse  than  all  this  was  the  conduct  of  the  Interior  Depart 
ment.  The  claimant  was  fairly  entitled  to  a  patent.  He  was  not 
bound  to  await  the  determination  of  the  courts.  It  was  the  duty  of 
the  Land-Office  to  let  him  have  it  at  once.  He  did  get  it  fairly,  hon 
estly,  and  without  any  kind  of  misrepresentation,  false  token,  trick,  or 
device.  The  patent  was  made  out,  signed,  sealed,  executed,  and  re 
corded.  It  was  a  perfect  muniment  of  his  title.  But  it  was  withheld 
from  him,  and  a  subsequent  Secretary  had  the  hardihood  to  tell  him 
it  had  never  been  signed.  Upon  examining  the  paper  it  was  found 
to  have  been  mutilated  by  detaching  the  two  last  pages  on  which  the 
signatures  were,  and  substituting  two  other  pages  without  signatures. 
In  other  words,  the  claimant  was  the  victim  of  an  infamous  forgery. 

The  history  of  the  claimant's  grievances  has  been  made  up  so 
plausibly,  persisted  in  so  long,  and  repeated  so  often,  that  some  good 
but  credulous  men  in  Congress  and  elsewhere  have  believed  it  to  be 
true.  Acting  upon  their  faith,  they  have  joined  in  the  demand  for 
reparation.  They  have  given  all  their  sympathies  to  the  injured  par- 


FORENSIC.  571 

ties,  and  their  wrath  has  waxed  hot  against  the  oppressors  who  have 
"held  them  sounder  fortune."  If  you  believe  it  you  can  not  be 
blamed  for  proposing  some  compensation  to  the  sufferers  out  of  the 
public  lands  or  the  public  moneys. 

But  their  whole  story,  through  and  through,  is  transparently 
false — false  in  the  beginning,  middle,  and  end — false  in  the  aggregate, 
and  false  in  every  part.  It  is  not  a  mixture  of  fact  and  falsehood — 
truth  dashed  and  adulterated  with  lies — it  is  purely  false  :  made  out 
of  the  whole  cloth  without  one  particle  of  honest  material  in  it. 

The  fundamental  fact  that  Gomez  had  a  grant  is  a  mere  fabrica 
tion.  The  allegation  is  not  only  unsupported  by  any  legal,  sufficient, 
or  satisfactory  evidence,  but  it  is  contradicted  by  overwhelming 
proofs.  The  pretense  of  a  grant  lies  at  the  foundation  of  their  case, 
and  that  being  swept  away,  everything  built  on  it  must  go  to  ruin 
along  with  it. 

I  will  not  repeat  to  you  now,  in  detail,  the  reasons  for  believing 
the  claim  to  be  a  false  one.  I  have  given  them  often  already,  and 
they  are  on  record.  You  will  find  them  set  forth  in  the  opinions  of 
the  Supreme  Court.  Several  of  my  colleagues  have  gone  over  them 
in  their  arguments  here.  Even  if  they  were  not  pointed  out  at  all, 
you  would  readily  perceive  them  from  the  record.  It  does  not  require 
any  analysis  of  the  evidence  to  show  that  it  is  all  on  one  side.  No 
unprejudiced  man  of  average  sense  was  ever  taken  in  by  it.  No  judge 
and  no  public  officer  that  looked  at  it  has  ever  expressed  a  doubt  of 
its  character. 

There  were  very  many  of  these  fraudulent  land  claims  set  up 
against  the  United  States  and  their  assignees.  After  the  close  of  the 
war  with  Mexico,  the  discovery  of  gold,  and  the  rush  of  emigration 
to  California,  the  fabrication  of  Mexican  titles  for  lands  became  a 
trade  and  a  business,  in  which  such  men  as  Gomez,  Abrego,  and  Mo 
reno  engaged  with  great  assiduity.  It  seemed  at  one  time  as  if  the 
whole  public  domain,  with  all  the  improvements  made  by  the  settlers, 
would  become  the  prey  of  these  spoilers.  Every  growing  city,  every 
town  of  importance,  the  richest  agricultural  districts,  the  most  prom 
ising  mines,  all  the  sites  necessary  to  guard  or  light  the  coast,  were 
covered  with  these  pretended  grants  ;  and  professional  witnesses  stood 
ready  to  swear  that  they  were  genuine.  The  duty  of  the  public  offi 
cers  to  resist  them  was  arduous  but  imperative,  exacting  severe  labor 
and  untiring  vigilance. 

The  claim  of  Gomez,  just  as  he  made  it  out  and  presented  it  to 
the  Land  Commission,  had  less  to  commend  it  than  any  other.  Of 
all  the  frauds  that  came  up,  this  was  the  plainest  and  easiest  to  expose. 
Either  as  Attorney-General  or  as  private  counsel,  I  became  familiar 
with  all  these  false  claims,  and  I  know  whereof  I  affirm,  when  I  say 
that  this  one  had  less  claim  to  respect  than  any  other.  If  you  doubt 


572  FORENSIC. 

this,  take  the  rejected  cases  (they  are  all  reported),  and  make  the 
comparison  yourselves.  You  will  find  that  not  one  among  them  was 
better  entitled  to  the  steadfast  opposition  which  I  gave  it,  or  the 
brand  it  got  from  Mr.  Bates  when  he  denounced  it  "  a  naked,  impu 
dent,  and  very  clumsy  fraud "  ;  and  nothing  ever  was  more  just 
than  the  unanimous  and  stern  condemnation  it  received  from  the 
court. 

Did  the  claimants,  Gomez,  Ord,  and  McGarrahan,  know  it  to  be 
false  ?  Something  depends  on  the  answer  you  may  give  to  this  ques 
tion.  The  faith  of  the  claimant  could  not  save  the  claim.  But  the 
moral  aspects  of  the  present  case  will  be  materially  different  if  you  find 
that,  while  these  men  were  trying  to  get  the  claim  allowed,  they  were 
perfectly  conscious  of  its  fraudulent  nature.  That  makes  them 
guilty  of  a  high  criminal  offense,  defined  and  punished  by  the  act  of 
18th  May,  1858.  (Revised  Statutes,  sec.  2471.)  The  penalty  is  im 
prisonment  at  hard  labor,  not  less  than  three,  nor  more  than  ten 
years,  and  a  fine  not  exceeding  ten  thousand  dollars.  Have  they 
brought  themselves  within  the  provisions  of  this  statute  ?  If  yes, 
then  the  Government  is  not  only  not  in  debt  to  them,  but,  per  contra, 
they  each  of  them  owe  the  Government  at  least  three  years  of  service 
at  hard  work  in  the  penitentiary.  The  account  is  heavily  against 
them  on  this  score  alone,  to  say  nothing  of  others. 

Gomez  did  most  certainly  know  that  he  never  had  a  grant.  If  he 
had  one,  he  made  it  himself,  and  did  not  show  it  for  fear  of  detection. 
It  is  curious  to  note  how  cautious  he  was  about  swearing  on  this  point. 
His  own  oath,  showing  the  existence  and  loss  of  the  paper,  and  his 
consequent  inability  to  produce  it,  was  necessary  to  legalize  parole 
evidence  of  its  contents.  But  he  would  not  lay  this  foundation.  He 
left  the  case  on  the  inadmissible  testimony  of  his  professional  wit 
nesses. 

After  he  had  divested  himself  of  his  whole  interest  by  his  convey 
ances  to  Ord  and  McGarrahan,  he  was  a  perfectly  competent  witness, 
yet  he  did  not  testify.  He  made  several  ex  parte  affidavits  on  inci 
dental  matters,  but  he  never  would  assert  the  genuineness  of  the 
grant.  He  was  ready  with  his  pen  in  the  fabrication  of  title-papers, 
and  handy  with  his  oath  in  swearing  them  through  ;  but  he  could  not 
always  make  them  fit.  He  had  been  caught  several  times  before,  and 
he  had  learned  to  be  careful. 

Who  was  it  that  clandestinely  placed  the  bogus  petition  informe 
and  deseno  among  the  Mexican  land  papers  of  the  Surveyor-General's 
office  ?  That  they  were  not  truly  a  part  of  the  records  is  perfectly 
certain.  That  Gomez  secretly  put  them  there  is  equally  clear.  They 
were  altered  by  Gomez  while  the  case  was  pending  before  the  Land 
Commission.  At  the  institution  of  the  suit,  he  laid  before  the  Com 
mission  a  deseno  which  he  said  he  had  borrowed  from  the  office  and 


FORENSIC.  573 

was  part  of  his  expedients  on  file  among  the  archives.  Afterward  the 
papers  were  produced,  and  behold  !  the  deseno  was  totally  different. 
This  last  one  was  traced  back  to  its  origin,  and  identified  as  an  old 
map  of  another  tract  two  hundred  miles  distant,  but  which  had  been 
thrown  aside.  You  will  look  at  the  sworn  statement  of  Mr.  Hopkins, 
keeper  of  the  archives,  and  if  the  facts  there  do  not  compel  you  to 
believe  that  this  unfinished  expedients  was  a  fraud  and  a  fabrication,  per 
petrated  by  Gomez  himself,  there  is  an  end  of  all  reasoning  on  cir 
cumstantial  evidence. 

Did  Gomez  communicate  his  guilty  knowledge  to  Ord  ?  Upon 
that  question  we  have  no  direct  evidence,  but  there  can  be  no  reason 
able  doubt  that  in  the  beginning  there  was  a  plain  bargain  between 
these  two  men.  Gomez  was  to  get  up  the  false  title,  and  Ord  was  to 
get  it  confirmed  by  betraying  his  trust  to  the  United  States.  The 
risk,  the  labor,  and  the  moral  atrocity  being  about  equal,  the  fruits  of 
the  enterprise  were  to  be  equally  divided  between  them. 

Gomez  could  not  have  concealed  the  actual  character  of  this  claim 
from  Ord  if  he  had  tried.  Ord  was  a  lawyer  who  knew  the  rules  of 
evidence  and  had  some  experience  in  the  examination  of  these  Mexi 
can  titles.  This  thing  could  not  impose  upon  him  for  a  moment. 
His  consciousness  that  it  was  not  only  false,  but  nakedly  and  palpably 
false,  was  betrayed  at  every  step  he  took. 

After  the  claim  was  rejected  by  the  Land  Commission  it  became 
necessary  to  appeal.  Ord,  the  District  Attorney,  took  the  appeal 
himself  against  the  Government  which  he  professed  to  represent ;  but 
he  did  it  in  the  name  of  other  attorneys,  who  were  not  concerned  in 
the  cause,  and  knew  nothing  about  it.  His  petition  for  review,  with 
the  names  of  Sloan  and  Hartman  appended  to  it,  was  a  manifest  for 
gery.  Then  he  got  Mr.  Hartman  to  move  the  reversal  of  the  Land 
Commissioners'  decree,  and  a  substitution  in  its  place  of  a  decree  con 
firming  the  claim.  Then  Mr.  Ord  came  forward,  and  in  the  name  of 
the  United  States,  whose  official  representative  he  was  in  that  court, 
declared  that  the  Government  had  no  objection  to  the  confirmation. 
Thus,  by  a  series  of  criminal  manoeuvres,  he  became  dominus  lites  on 
both  sides,  and  got  a  decree  in  his  own  favor  against  the  public,  who 
was  his  own  client,  in  a  case  plainly  fraudulent,  without  subjecting  it 
to  the  scrutiny  of  any  lawyer  or  any  judge. 

This  was,  beyond  all  comparison,  the  worst  offense  ever  committed 
in  this  country  against  the  administration  of  public  justice.  The  de 
cree  so  obtained  was  a  mere  nullity.  I  mention  it  now,  however,  to 
show  that  Ord,  as  well  as  Gomez,  knew  the  original  title  to  be  false. 
If  he  had  had  the  least  faith  in  the  genuineness  of  his  papers,  or  the 
credibility  of  his  professional  witnesses,  would  he  have  resorted  to  such 
deception,  falsehood,  and  forgery  to  prevent  them  from  being  exam 
ined  ?  Is  it  morally  possible  that  he  would  run  such  heavy  risks  to 


574  FORENSIC. 

cover  up  and  conceal  from  court  and  bar  the  merits  of  a  claim  which 
he  believed  to  be  honest  ? 

But  McGarrahan  abjures  all  connection  with  the  fabrication  of  the 
title  or  with  the  imposture  practiced  by  Ord  upon  the  court.  He  al 
leges  that  he  bought  into  the  business  after  these  frauds  were  commit 
ted,  and  being  an  ignorant  as  well  as  an  innocent  purchaser,  it  is  a 
hardship  upon  him  to  lose  his  investment,  small  though  it  was.  He 
states  here  upon  oath  that  he  bought  upon  a  "certified  transcript 
under  the  seal  of  the  court,"  by  which  he  means  that  he  took  the  title 
in  good  faith,  believing  it  to  be  sound  because  it  appeared  by  the  rec 
ord  to  have  been  regularly  confirmed  by  the  District  Court. 

This  account  of  his  original  connection  with  the  case  was  given 
when  he  first  appeared  in  the  contest,  and  it  has  been  adhered  to  ever 
since.-  If  it  were  true  it  would  not  make  his  right  in  law  or  equity 
one  whit  better.  The  actual  owners  of  the  property  are  not  to  be 
plundered  by  means  of  a  fabricated  and  false  title,  no  matter  in  whose 
hands  it  may  be,  nor  how  it  came  there.  McGarrahan  could  take 
nothing  but  the  title  of  Gomez,  with  all  its  imperfections  on  its  head. 

But  I  do  not  pause  to  discuss  the  principle.  I  deny  the  fact. 
There  is  not  one  word  of  truth  in  the  allegation  that  he  bought  igno- 
rantly.  The  record  flatly  contradicts  the  whole  story,  and  shows  that 
at  the  time  of  his  purchase  there  was  no  decree  in  the  case  except  the 
decree  of  the  Land  Commission  rejecting  the  claim.  A  glance  at  the 
dates  will  show  you  this.  The  deed  from  Gomez  to  McGarrahan  was 
made  on  the  22d  of  December,  1857.  The  decree  which  Ord  got,  re 
versing  that  of  the  Land  Commission,  and  substituting  in  its  place 
another  confirming  the  title  for  three  leagues,  was  made  and  put  on 
record— when  ?  On  the  7th  of  January,  1858.  This  was  abandoned 
(or  perhaps  I  should  say  enlarged),  and  another  confirmation  entered 
for  four  leagues  on  the  5th  of  February,  1858.  Can  anything  be  more 
absurdly  false  than  the  allegation  that  he  bought  it  in  December  on 
the  faith  of  the  approving  decree,  which  was  not  made  until  the  fol 
lowing  January  ? 

When  he  bought  he  may  have  had  a  certified  copy  of  the  record  as 
far  as  it  existed  at  that  time.  If  he  had  it  gave  him  distinct  notice 
that  he  was  buying  a  worthless  title,  rejected  by  the  tribunal  having 
jurisdiction  to  decide  upon  its  validity.  It  was  a  dead  claim  then, 
and  he  certainly  would  not  buy  it  in  that  condition  unless  he  saw 
some  hope  of  reviving  it  by  getting  a  confirmation  on  appeal.  No 
such  hope  could  be  inspired  by  an  examination  of  the  title  itself.  If 
he  looked  into  the  papers  and  proofs  he  must  have  seen  that  no  judge 
could  respect  them  as  truthful  and  genuine. 

He  may  also  have  known  (and  he  did  know,  for  the  record  on  the 
5th  of  June,  1857,  discloses  it)  that  Ord  intended  to  get  the  decree  of 
the  Land  Commission  reversed,  and  a  decree  of  confirmation  by  the 


FORENSIC.  575 

District  Court.  But  he  also  knew  the  facts  which  would  make  any 
such  decree  a  mere  nullity.  He  knew  that  Ord  was  attorney  on  both 
sides,  and  that  there  was  an  agreement  between  Ord  and  Gomez  for 
Ord's  corrupt  services  in  getting  the  confirmation.  This  agreement 
was  referred  to  in  his  deed,  and  he  held  his  right  subject  to  it.  In 
other  words,  he  made  a  covenant,  running  with  the  land,  that  Ord 
should  receive  the  wages  of  his  iniquity  according  to  the  measure 
agreed  upon  by  Gomez.  It  is  as  plain  as  day  that  McGarrahan  paid 
his  money,  not  for  the  worthless  title  rejected,  condemned  and  killed 
by  the  Land  Commission,  but  for  Ord's  promise  to  betray  the  United 
States,  and  trick  the  court  into  a  confirmation. 

McGarrahan  having  stepped  into  the  shoes  of  Gomez,  he  held  Ord 
to  his  engagement,  and  held  him  hard.  Within  sixteen  days  after  he 
came  into  the  case,  Ord  consummated  his  imposture  upon  the  court. 
A  decree  drawn  up  by  the  District  Attorney,  under  the  pay  of  the 
claimant,  was  adopted  by  the  judge,  and  formally  entered  of  record, 
confirming  a  title  which  stood  no  earthly  chance  of  being  approved  on 
a  fair  hearing. 

This  was  McGarrahan's  own  fraud,  practiced  for  him  by  his  recog 
nized  agent,  attorney,  and  partner,  in  pursuance  of  an  agreement  to 
which  he  had  made  himself  a  party,  and  for  a  compensation  which  he 
had  covenanted  to  pay.  As  soon  as  it  was  finished,  he  claimed  it  for 
his  own,  and  stood  upon  it  with  both  feet,  as  the  only  foundation  of 
what  he  calls  his  equity.  His  every  struggle,  through  the  whole  ju 
dicial  contest,  was  to  hold  that  false  and  void  decree  in  the  place 
where  he  put  it.  All  his  brutal  abuse  of  public  officers,  of  courts,  and 
of  counsel  opposed  to  him,  has  been  provoked  by  their  efforts  to  set  it 
aside,  or  to  reverse  it. 

How  vain  it  is  to  call  this  man  an  innocent  purchaser,  or  to  excuse 
him  for  his  subsequent  crimes  by  supposing  that  he  was  deluded  into 
the  first  one  ?  He  was  not  deluded.  He  made  love  to  the  filthy  busi 
ness,  and  went  to  it  with  his  eyes  wide  open. 

His  later  acts  all  show  the  animus  with  which  he  began.  He  and 
Ord  have  ever  since  been  trying  to  maintain  their  position  by  means 
as  dishonest  as  those  which  they  used  at  the  beginning. 

Mr.  Stan  ton,  being  then  in  California,  and  hearing  of  this  decree, 
took  it  upon  himself  to  move  that  it  be  opened.  It  was  afterward 
stricken  from  the  record  by  Judge  Ogier,  upon  satisfactory  proof  that 
it  had  been  obtained  by  willful  misrepresentation.  This  was  most 
violently  opposed,  and  staved  off  for  a  long  time  on  one  pretense  and 
another.  Why  was  this  opposition  ?  It  could  only  mean  that  the 
claimants  were  afraid  of  a  hearing.  If  they  believed  that  their  title 
would  bear  examination,  they  would  gladly  have  submitted  it  to  the 
test. 

Judge  Ogier  died,  and  Judge  Haight  was  appointed  in  his  place. 


576  FORENSIC. 

The  new  judge,  instead  of  hearing  the  case,  and  deciding  it  upon  its 
merits,  as  his  predecessor  had  resolved  that  it  should  be,  declined  to 
give  the  United  States  any  hearing  at  all,  but  reinstated  the  fraudu 
lent  decree  as  good  and  valid.  He  expressly  declared  the  decree  to  be 
a  base  fraud — he  had  no  doubt  of  that — but  the  court  could  not  strike 
a  fraud  from  the  record  after  the  end  of  the  term  at  which  it  was  com 
mitted.  However,  he  said,  the  United  States  have  an  appeal,  and  the 
Supreme  Court  will  do  justice.  An  appeal  was  taken,  and  duly  al 
lowed.  Then  he  came  back  with  a  sharp  turn,  and,  at  the  instance 
of  the  claimants,  he  revoked  his  order  allowing  the  appeal.  When  the 
United  States,  denying  his  jurisdiction  to  decide  this  question,  de 
manded  a  transcript  to  be  used  in  the  Appellate  Court,  he  forbade  the 
clerk  to  make  one,  or  to  let  it  be  made  by  the  District  Attorney. 

To  a  Senator,  or  to  anybody  else  who  has  read  even  the  horn-books 
of  the  law,  I  need  not  say  that  this  conduct  of  Judge  Haight  was  a 
violation  of  his  duty.  "When  it  is  considered  that  all  these  preposterous 
rulings  were  made  in  the  interest  of  what  the  judge  himself  admits  to 
be  a  gross  fraud,  and  to  prevent  the  United  States  from  getting  an 
honest  trial,  either  below  or  above,  it  becomes  difficult  to  excuse  them. 
The  charity  that  thinketh  no  evil  can  scarcely  believe  that  so  many 
palpable  blunders  could  be  made  in  one  case  unless  the  judge  was  un 
der  some  evil  influence.  If  McGarrahan's  explanation  came  from  a 
credible  source  it  might  be  a  solution  of  the  mystery.  He  says  in  a 
letter  that  Judge  Haight  was  plowed  with  before  his  appointment ; 
that  in  fact  he  got  his  commission  with  the  understanding  that  he 
would  decide  for  the  claimants.  But  McGarrahan's  mendacity  takes 
all  value  from  his  statements  except  as  they  are  confessions  of  his  own 
guilt. 

With  much  tribulation  the  United  States  got  a  copy  of  the  record 
in  separate  pieces,  which  being  put  together,  the  District  Attorney 
certified  them  under  the  act  of  Congress,  and  the  cause  came  up  in 
spite  of  all  efforts  to  prevent  it. 

Before  I  go  further  on  this  line  it  is  necessary  to  revert  to  some 
other  means  which  the  claimants  adopted  of  propping  up  their  false 
decree. 

Very  soon  after  Mr.  Stanton's  motion  was  filed  to  open  Ord's  de 
cree,  and  while  it  was  pending  undetermined,  McGarrahan  required  a 
copy  of  the  record,  which  was  made  out  truly  and  sent  to  him.  But 
this  true  copy  did  not  suit  his  purpose,  because  it  showed  that  no  ap 
peal  had  been  taken,  and  it  did  include  Stan  ton's  motion.  He  sent  it 
back,  and  directed  that  another  should  be  made,  regardless  of  expense  ; 
suggesting  that  the  motion  should  be  omitted  and  an  appeal  be  in 
serted.  This  was  done,  the  alteration  was  made,  and  so  McGarrahan 
became  possessed  of  a  transcript  conveniently  false.  I  say  it  was  false 
because  the  omitted  motion  is  known  to  have  been  on  the  record  long 


FORENSIC.  577 

before,  and,  in  fact,  copied  as  a  part  of  it  in  the  first  transcript.  That 
no  appeal  had  been  taken  or  allowed  is  clearly  shown  by  the  original 
record.  Judge  Ogier  declared  judicially  that  no  appeal  had  ever  been 
granted  by  him  ;  the  clerk  himself  deposed  that  no  appeal  was  found  ; 
and  the  Supreme  Court,  after  an  elaborate  examination  of  the  subject, 
held,  as  matter  of  fact,  that  the  contrary  allegation  of  McGarrahan 
was  untrue. 

This  false  transcript  was  brought  up  to  the  Attorney-General, 
coupled  with  a  request  that  he  dismiss  the  appeal.  That  officer,  see 
ing  that  an  appeal  was  certified  on  the  transcript,  and  not  suspecting 
its  verity,  examined  the  title.  Finding  it  wholly  defective  he  refused 
to  let  it  pass  as  good. 

Failing  there  the  claimant  took  his  transcript  to  the  Supreme 
Court,  where  the  rule  gave  him  a  right  to  docket  and  dismiss  for  want 
of  prosecution  in  time.  The  court,  like  the  Attorney-General,  was 
unsuspicious  of  any  deception,  and  the  trick  upon  it  was  temporarily 
successful.  An  order  was  made  to  dismiss  the  appeal,  and  a  mandate 
issued  to  proceed  as  upon  a  final  decree,  "the  said  appeal  notwith 
standing/' 

When  this  order  was  brought  to  the  court  below,  the  judge  said  he 
had  never  granted  an  appeal  in  the  case.  On  the  contrary,  a  motion 
was  pending  to  strike  out  the  decree,  and  give  the  United  States  a 
hearing  before  himself.  The  claimant  applied  for  a  mandamus  to  en 
force  the  mandate,  and  the  Attorney-General  moved  to  revoke  it.  The 
Supreme  Court,  after  argument  on  both  sides,  held  that  the  decree  of 
confirmation  was  obtained  by  a  false  contrivance  ;  that  there  never 
had  been  an  appeal  from  it,  as  McGarrahan's  transcript  falsely  certi 
fied  ;  and  that,  therefore,  the  mandate  oughb  to  be  revoked.  If  you 
want  a  verification  of  these  statements,  or  a  fuller  detail  of  them,  I 
refer  you  to  Judge  Waynes's  opinion,  which  you  can  not  read  without 
being  convinced  that  the  two  claimants,  McGarrahan  and  Ord,  are  as 
sorry  a  brace  of  knaves  as  one  fraud  ever  yoked  together  since  the 
world  began.  (United  States  vs.  Gomez,  23  Howard,  326.) 

To  hold  up  the  decree,  and  cover  the  rottenness  of  their  title,  the 
claimants  demanded  another  writ  of  mandamus  to  compel  the  court 
below  to  stop  the  investigation  of  its  character,  or  open  it  for  a  hear 
ing  which  might  let  in  the  light.  And  yet  another  mandamus  they 
asked  for  against  the  Surveyor-General,  to  make  a  survey  at  once  with 
out  waiting  for  the  further  proceedings  of  the  court.  These  move 
ments  failed,  of  course,  and  I  only  mention  them  now  to  show  the  des 
perate  strategy  to  which  the  claimants  were  driven  by  their  fear  of  a 
fair  trial. 

McGarrahan,  with  a  power  of  attorney  from  Ord,  organized  the 
Panoche  Grande  Company,  with  a  capital  of  five  millions  (afterward 
increased  to  ten),  every  cent  of  it  consisting  in  land  to  which  he  had 
37 


578  FORENSIC. 

not  a  shadow  of  title,  and  which  was  not  intrinsically  worth  the  twen 
tieth  part  of  the  price  he  put  upon  it.  With  the  stock  of  this  com 
pany,  divided  into  convenient  shares,  he  rewarded  his  blowers  and 
strikers,  and  by  selling  it  to  ignorant  dupes  he  raised  enough  money 
to  keep  himself  personally  equipped  for  the  contest. 

The  whole  struggle  at  that  time  was  an  effort  on  one  side  to  get  an 
impartial  hearing,  and  on  the  other  to  hide  the  original  title  away 
under  the  decree  already  obtained.  The  claimants  succeeded  in  the 
District  Court,  and  for  a  long  time,  and  by  many  devices,  they  pre 
vented  the  United  States  from  getting  a  transcript  of  the  record. 
When  at  last  the  Supreme  Court  got  possession  of  the  case,  the  claim 
ants,  instead  of  coming  up  to  vindicate  the  title,  assaulted  the  appeal 
with  complaints  of  irregularity,  and  denied  the  jurisdiction  of  the 
court  to  determine  the  merits,  or  even  to  look  at  them. 

When  you  reflect  that  the  taking  of  this  appeal  is  charged  as  a 
grave  offense — that  all  public  officers  and  private  counsel  who  had  any 
thing  to  do  with  it  are  bitterly  maligned  for  their  respective  shares  in 
it — and  that  the  judges  themselves  are  abused  for  sustaining  it,  you 
will  feel  bound  to  look  somewhat  narrowly  into  the  reasons  pro  and  con. 

Why  was  it  improper  to  take  this  appeal  ?  No  man  with  sense 
enough  to  know  his  right  hand  from  his  left  will  say  that  an  appeal 
from  one  court  to  another  is  necessarily  wrong.  That  the  Attorney- 
General  and  the  counsel  who  were  aiding  him  did  a  disreputable  thing 
when  they  brought  up  from  the  District  Court  a  decree  which  they 
believed  to  be  erroneous,  with  the  object  of  having  it  reviewed  and 
reversed  by  the  proper  appellate  tribunal,  is  a  proposition  which  no 
human  being  will  make  in  the  abstract.  On  the  contrary,  all  men  will 
acknowledge  that  it  was  their  plain  and  unavoidable  duty.  But  the 
integrity  of  this  appeal  is  impugned  on  the  score  of  irregularity  in 
manner  and  time. 

Those  objections  were  urged  before  the  Supreme  Court  on  a  motion 
to  dismiss,  repeatedly  argued  by  the  ablest  counsel  in  the  country. 
You  will  find  them  fully  set  forth  in  1  Wallace,  694,  and  in  3  Wallace, 
758.  If  you  will  read  our  answer,  imperfectly  given  on  page  698  (1 
Wallace),  and  follow  that  by  a  glance  at  the  two  opinions  of  the  court, 
you  will  find  it  impossible  to  doubt  the  perfect  propriety  of  the  judg 
ment  which  sustained  the  appeal. 

But  to  save  you  trouble  I  will  here  give  the  objections  and  the  rea 
sons  upon  which  they  were  overruled,  in  a  form  as  compact  as  possible. 

1.  Five  years  had  run  out  between  the  decree  and  the  appeal.     The 
record  showed  this  to  be  untrue,  as  anybody  might  see  who  had  arith 
metic  enough  to  count  his  own  fingers. 

2.  The  Judge  had  revoked  his  allowance  of  the  appeal.     True  :  but 
the  Judge  had  no  power  to  do  this.     The  appeal  being  once  allowed, 
all  jurisdiction  passed  into  the  Appellate  Court. 


FORENSIC.  579 

3.  TJiere  was  no  citation.     A  citation  was  not  needed,  the  appeal 
being  taken  within  the  term  at  which  the  decree  was  reinstated,  and 
upon  notice  to  the  appellee  that  an  appeal  was  intended. 

4.  The  record  ivas  not  filed  in  good  time  according  to  the  rule. 
But  the  delay  was  intentionally  caused  and  contrived  by  the  unlawful 
acts  of  the  claimants  themselves,  and  the  improper  doings  of  the  clerk 
and  the  Judge,  under  the  instigation  of  the  claimants. 

5.  The  transcript  of  the  record  was  incomplete,  and  not  certified 
properly.     It  was  certified  according  to  the  act  of  Congress,  and  if 
anything  was  omitted  they  could  suggest  diminution,  and  take  a  cer- 
tiorari  to  bring  up  what  was  wanting. 

What  could  the  court  do  but  sustain  the  appeal  ?  It  was  a  strictly 
legal  exercise  by  the  United  States  of  a  clear  right.  It  was  properly 
used  as  the  only  means  left  to  get  the  justice  which  had  been  sold 
away  and  denied  in  the  court  below.  The  claimants'  real  objection 
was  that  if  it  was  heard  on  its  merits  it  must  necessarily  result  in  their 
defeat. 

When  the  case  was  reached  for  argument  fresh  counsel  appeared, 
and  insisted  upon  being  heard  anew  upon  the  motion  to  dismiss,  and 
they  were  fully  heard  again.  They  did  not  change  the  opinion  of  the 
court,  nor  shake  the  faith  of  a  single  judge  in  the  right  of  the  United 
States  to  get  a  fair  hearing  on  the  merits. 

I  do  not  speak  merely  from  memory,  but  from  the  report  as  well, 
when  I  say  that  their  argument  on  the  title  was  a  confession  of  its  in 
validity.  They  could  not  stand  up  and  say  on  their  professional  re 
sponsibility  that  they  believed  Gomez  ever  had  a  grant,  or  that  the 
confirmation  obtained  by  Ord  was  not  fraudulent.  But  they  appeared 
for  McGarrahan  and  told  his  story  (an  old  story  even  then),  that  he 
was  an  innocent  purchaser  without  notice  of  the  fraud.  Therefore  the 
false  title  of  Gomez  should  be  pronounced  good,  and  the  fraudulent 
decree  of  Ord  should  be  permitted  to  stand.  This  proposition  was 
untrue  in  point  of  fact,  and  totally  unsound  in  law.  The  court  de 
cided  the  issue  before  it,  which  was  whether  Gomez  had  a  title  or  not. 
And  of  course  it  was  decided  according  to  the  law  and  the  evidence. 
The  claim  was  rejected  as  a  mere  fraud,  unsupported  by  any  decent 
show  of  evidence  in  its  favor. 

But  suppose  the  claimant  to  have  been  honest,  the  papers  genuine, 
and  the  confirmation  just :  that  would  give  him  no  right  to  the  land 
which  he  is  now  seeking  to  get.  What  he  is  grasping  at  here  is  not 
what  he  clamored  for  in  the  courts,  but  a  totally  different  thing.  Of 
all  his  false  pretenses  the  most  impudent  is  that  which  changes  the 
location  of  his  claim  from  the  place  where  he  put  it  in  his  judicial 
prosecution  of  it  to  another  and  far  distant  region  of  the  country. 

In  the  petition  of  Gomez  to  the  Departmental  Governor ;  in  his 
petition  to  the  Land  Commissioners  for  confirmation  ;  in  the  decree  of 


580  FORENSIC. 

confirmation  itself,  as  manipulated  by  Ord  ;  in  the  conveyances  made 
by  Gomez  to  Ord  and  McGarrahan — the  land  is  described  as  lying  and 
being  at  a  certain  place,  well  defined  by  boundaries  given  with  more 
than  common  precision.  Those  boundaries  are  the  lines  of  two 
ranches  on  the  north  and  south,  which  belonged  respectively  to  Don 
Juan  Ursua  and  Don  Francisco  Arias,  and  on  the  other  sides  certain 
hills  and  plains  are  given  as  limits.  By  the  deseno  with  which  he 
accompanies  his  petition  to  the  Commissioners,  he  shows  exactly  the 
local  relation  of  the  land  he  claimed  with  the  two  ranchos  mentioned. 
He  exhibits  his  tract  as  lying  between  those  of  Arias  and  Ursua,  and 
abutting  directly  upon  both.  That  was  the  land  claimed  by  Gomez, 
by  Ord,  and  by  McGarrahan,  all  through  the  judicial  proceeding. 
But  the  tract  that  Gomez  professed  to  want,  "for  the  interesting  busi 
ness  of  agriculture,"  did  not  answer  the  purpose  of  McGarrahan.  He 
had  cast  his  covetous  eyes  on  a  mine  in  the  mountains,  twenty-four 
miles  away  from  the  Gomez  ranch,  and  he  unblushingly  moved  the 
claim  over  to  take  it  in. 

I  have  not  stated  this  point  with  any  intent  to  discuss  it.  That 
has  been  done  already.  The  argument  of  Mr.  Evarts  before  the 
House  committee  of  1870  is  strikingly  clear.  Mr.  Burdett  has  evis 
cerated  the  documents  and  analyzed  the  evidence  on  this  part  of  the 
case  with  unequaled  power,  and  has  held  it  up  in  so  strong  a  light 
that  no  further  exposure  is  needed.  The  official  map  of  the  country 
is  itself  an  ocular  demonstration,  and,  taken  in  connection  with  the 
depositions  of  the  Surveyor-General,  and  other  witnesses  who  describe 
the  topography  of  the  ground,  it  puts  an  end  to  all  controversy. 
There  you  see  where  the  two  ranchos  are  which  the  confirmation  calls 
for  as  boundaries.  The  hills  and  the  plains  are  there  also,  and  twenty- 
four  miles  away  from  them  you  see  the  mountains  where  the  quick 
silver  mines  are  situated. 

As  matter  of  law  and  fact  nothing  can  be  more  incontestable  than 
this  :  That  the  deseno,  the  papers  produced  before  the  Commission, 
the  grant,  if  there  ever  was  one,  and  the  conveyances  between  the 
parties,  all  fix  the  claim  at  one  place,  and  anchor  it  fast  to  the  two 
ranchos  called  for  as  boundaries.  The  decree  which  they  made  them 
selves  does  not  pretend  to  give  them  any  other  land.  Suppose  it  to  be 
honest  and  still  standing  in  full  force,  it  authorizes  no  survey  or  loca 
tion,  except  one  which  adjoins  the  two  ranchos  aforesaid.  These  calls 
being  answered,  the  survey  might  be  extended  toward  the  plains  and 
the  hills,  so  as  to  include  the  proper  quantity  in  a  compact  form.  But 
even  for  quantity  the  survey  could  not  go  beyond  these  limits. 

Mr.  Upson,  the  Surveyor-General,  has  described  in  his  testimony, 
and  marked  on  his  map  in  green,  the  exterior  limits  described  in  the 
decree.  They  include  about  seventy  thousand  acres.  This  survey, 
correctly  laid  down,  according  to  the  decree,  on  the  side  adjoining 


FORENSIC.  581 

Arias  and  TJrsua,  would  leave  out  about  fifty  thousand  acres  on  the 
other  side  of  the  green  space. 

Suppose  this  to  be  (what  it  is  not)  a  floating  grant  which  might  be 
laid  down  anywhere  within  those  limits,  at  the  election  of  the  grantee, 
he  could  not  elect  to  include  a  mine  or  a  settlement,  or  a  purchase 
lawfully  made  by  another  person,  within  the  same  exterior  lines,  before 
the  election  of  the  grantor  was  signified.  If,  therefore,  the  New  Idria 
Mine  were  in  the  green  space,  the  claimants  could  not  include  it  in 
their  survey.  The  owner  of  a  floating  grant  can  not  wait  for  an  in 
definite  time  without  taking  possession,  or  making  a  survey,  or  other 
wise  indicating  where  his  location  is  to  be,  and  then  take  a  particular 
part  of  it  to  which  special  value  has  been  given  by  the  improvements 
of  other  persons. 

But  these  points  are,  in  this  case,  merely  speculative.  The  mine 
is  not  there  at  all.  McGarrahan  could  only  take  it  in  by  disregarding 
all  calls  and  transcending  all  limits.  If  this  grant  could  take  the 
mine,  any  other  grant,  true  or  false,  in  the  whole  country  could  take 
it  just  as  well.  If  he  could  go  away  from  his  specific  calls  twenty- 
four  miles,  he  could  go  anywhere.  He  might  as  well  have  laid  his 
claim  upon  the  city  of  San  Francisco. 

The  decree  was  a  fraud  upon  the  United  States,  but  this  survey 
must  bear  the  superadded  infamy  of  being  a  fraud  upon  the  fraud 
itself. 

By  whom  was  all  this  brought  about  ?  Nobody  will  pretend  that 
McGarrahan  himself  did  not  do  it.  There  can  be  no  pretense  of  in 
nocence  here.  He  was  after  the  New  Idria  Mine.  His  fabricated  title 
and  his  fraudulent  decree  would  do  him  no  good  unless  he  could  also 
cheat  in  the  survey.  But  to  cheat  in  the  survey  was  difficult  as  the  law 
then  stood.  According  to  his  own  confession,  he  got  the  law  changed 
by  the  use  of  influences  grossly  improper.  By  the  use  of  similar  in 
fluences  he  procured  the  appointment  of  a  Survey  or- General  that  he 
thought  would  suit  him,  and  made  his  appointee  the  willing  tool  of 
his  fraud.  It  is  hardly  necessary  to  say  that,  while  this  confession 
must  be  taken  as  true  against  McGarrahan  himself,  it  cannot  be  justly 
allowed  to  injure  the  reputation  of  Mr.  Beale,  or  the  members  of  Con 
gress  whom  McGarrahan  accuses  of  aiding  him. 

McGarrahan,  by  himself  and  his  counsel,  has  spoken  as  if  he  be 
lieved  that  this  location  of  a  fabricated  claim  twenty-four  miles  away 
from  its  calls  had  some  technical  virtue  to  strengthen  his  title.  If  you 
have  ever  been  inclined  to  this  notion,  read  the  opinion  of  the  Su 
preme  Court  of  California  in  the  case  of  Maxwell  vs.  McGarrahan. 
(28  Cal.  Rep.)  It  was  wholly  void,  and  something  worse  than  void, 
not  only  because  it  was  inconsistent  with  the  decree  of  which  it  pre 
tended  to  be  an  execution,  but  because  it  was  unauthorized  and  unof 
ficial — a  private  act  done  at  the  dictation  of  the  claimant  himself — 


582  FORENSIC. 

clandestinely  and  secretly — behind  the  back  of  the  parties  interested — 
in  the  teeth  of  the  law  which  required  that  full  notice  should  be  given 
them. 

So  far  from  strengthening  his  title  by  this  false  location  of  his 
claim,  he  completely  destroyed  it.  He  abandoned  his  claim  to  the 
four  leagues  adjoining  Ursua  and  Arias  when  he  went  twenty-four 
miles  away  to  get  another  tract  which  he  thought  more  valuable. 

Let  me  illustrate  this :  Suppose  a  man  to  assert  that  he  had  an 
agreement  with  some  ancient  proprietor  of  the  land  on  which  the 
city  of  Washington  stands,  for  a  lot  adjoining  two  other  well-known 
lots,  near  Eock  Creek,  at  the  extreme  west  side  of  the  town,  and  he 
brings  a  bill  against  the  heirs  of  his  vendor  for  a  legal  conveyance  of 
the  lot  so  purchased,  describing  it  exactly.  Pending  the  suit  he  takes 
a  fancy  that  he  would  rather  have  another  lot  three  miles  away,  near 
the  Navy- Yard,  which  has  been  occupied  for  twenty  years  and  has  im 
provements  of  very  great  value.  He  gets  the  lines  of  the  latter  lot 
run,  and  plot  made  furtively,  unofficially,  without  authority  or  notice  ; 
thenceforth  he  begins  to  demand  a  conveyance  of  that  lot  as  a  specific 
performance  of  his  agreement  for  the  purchase  of  the  other.  Are  not 
these  claims  mutually  destructive  ?  I  submit  to  your  judgment 
whether  the  false  and  fraudulent  survey  does  not  of  itself  cut  the 
whole  case  up  root  and  branch. 

McGarrahan,  having  a  fabricated  title  and  a  fraudulent  decree  of 
confirmation  for  one  tract  of  land,  with  a  private  survey  for  another, 
thought  himself  ready  to  demand  a  patent.  The  misrepresentations 
which  he  used  at  the  Land-Office  were  a  repetition  of  his  former  as 
sertions,  with  one  stupendous  addition.  He  insisted  that  his  title  was 
good  ;  that  his  decree  of  confirmation  was  honestly  obtained,  and  that 
his  survey  was  on  the  ground  described  in  the  decree.  He  denied 
that  any  appeal  was  pending  from  the  decree  of  the  Circuit  Court,  or 
could  be  taken  ;  and  he  made  the  Secretary  of  the  Interior  believe  it. 
But  that  was  not  all.  He  assured  the  Secretary  that  the  cause  had 
actually  been  brought  before  the  Supreme  Court ;  that  it  was  there 
argued  by  counsel  on  both  sides  (Ord  for  the  appellees  and  Sloan  and 
Hartman  for  the  appellants)  ;  that  after  the  argument  the  cause  was 
submitted  for  final  adjudication  ;  that  thereupon  the  Supreme  Court 
delivered  its  opinion  and  entered  a  decree  confirming  the  claim  to  the 
extent  of  three  leagues.  I  need  not  say  that  this  is  all  purely  false  ; 
the  truth  is  well  known  to  be  exactly  the  other  way  ;  but  it  was  be 
lieved  by  the  Interior  Department,  on  the  authority  of  "a  duly  certi 
fied  extract  from  the  minutes  of  the  Supreme  Court."  No  doubt 
such  a  paper  was  produced  by  McGarrahan,  or  else  it  could  not  have 
been  recited  in  the  draft  of  the  patent.  Who  made  it  ?  How  was  it 
gotten  up  ?  Is  it  not  one  of  the  claimant's  characteristic  fabrica 
tions  ? 


FORENSIC.  583 

Influenced  by  these  misrepresentations,  the  Secretary  of  the  Inte 
rior  directed  a  patent  to  be  drafted,  reciting  the  grounds  upon  which 
he  thought  himself  justified  ;  but  it  never  was  issued.  Before  it  could 
be  signed  by  the  President,  or  the  Eecorder,  or  otherwise  finished,  so 
as  to  give  it  any  virtue  or  force,  the  Secretary,  admonished  by  the 
Attorney-General  that  such  an  instrument  would  be  void  and  illegal, 
directed  it  to  be  stopped.  The  unexecuted  paper  is  there  to  this  day. 

Afterward  he  applied  to  Secretary  Browning  for  a  patent,  under 
the  act  of  1866.  Here  he  admitted  that  his  claim  had  been  rejected 
by  the  courts. 

To  bring  it  within  the  act  of  1866,  it  was  necessary  to  show  : 

1.  That  he  bought  of  a  Mexican  grantee  in  good  faith. 

2.  That  he  had  used  and  improved  the  land,  and  continued  in  the 
actual  possession  of  it. 

3.  That  such  possession  was  according  to  the  lines  of  his  original 
purchase. 

4.  That  no  adverse  right  or  title  existed  out  of  the  United  States. 

5.  That  the  land  did  not  contain  any  mine  of  gold,  silver,  copper, 
or  cinnabar. 

In  fact,  and  in  truth,  he  had  bought  in  bad  faith  from  one  who 
was  not  a  Mexican  grantee,  and  who  never  pretended  to  be  a  grantee  of 
the  land  for  which  a  patent  was  asked.  Neither  he  nor  anybody  under 
whom  he  claimed  had  ever  used  or  improved  it,  or  been  in  actual  pos 
session  of  it  for  an  hour.  Of  his  original  purchase  he  never  marked 
any  lines  at  all ;  he  had  ignored  it  utterly — abandoned  it  for  other 
land  ;  and  of  that  other  he  took  no  possession,  had  made  no  use,  and 
never  improved  it  to  the  value  of  a  cent.  There  were  rights  and 
titles  adverse  to  his,  under  which  many  persons  were  in  possession  for 
more  than  fifteen  years.  Finally,  there  was  a  mine  of  cinnabar  on  it, 
and  to  get  that  mine  in  the  very  teeth  of  the  law  was  the  direct  pur 
pose  and  sole  object  of  the  application. 

It  was  a  mere  matter  of  course  that  Mr.  Browning  should  deny 
the  absurd  request.  McGarrahan  complained  qf  the  refusal  to  the 
local  court  of  this  district.  The  judges  were  induced  to  believe  in  the 
plaintiff's  right  ;  they  affirmed  their  own  jurisdiction  to  vindicate  it, 
and,  after  notice  -to  Mr.  Browning,  they  issued  the  mandamus  against 
Mr.  Cox  without  notice.  Mr.  Cox  would  not  submit.  He  took  a 
writ  of  error,  and  the  cause  was  argued  for  him  in  the  Supreme  Court 
by  Mr.  Hoar,  the  Attorney-General,  and  by  Mr.  Ashton,  his  assistant. 
The  judgment  was  reversed,  and  the  reversal  was  accompanied  by 
some  remarks  not  flattering  to  the  honesty  of  the  plaintiff  or  the 
sagacity  of  the  court  below.  All  which  you  may  read  at  your  leisure 
in  9  Wallace,  298. 

It  was  after  all  this  that  he  fell  back  on  the  patent  of  1863.  He 
professed  to  believe  that  the  patent  was  signed,  and  when  it  was  pro- 


584  FORENSIC. 

duced  without  a  signature,  he  replied  by  accusing  the  Secretary  and 
other  officers  of  the  Interior  Department  with  the  foulest  crimes. 
Every  record  which  contradicts  his  calumny  is  pronounced  to  be  mu 
tilated,  forged,  or  falsified.  I  will  not  go  over  the  evidence  on  this 
point.  The  character  of  the  accused,  the  absence  of  all  motive  for 
the  offense,  the  fact  that  no  possible  good  or  injury  could  be  done  to 
anybody  by  its  commission,  and  the  unequivocal  testimony  of  the  most 
respectable  men,  that  it  was  not  committed  :  these  considerations 
make  the  charge  too  preposterous  to  be  answered.  The  wonder  is 
that  two  persons  could  be  found  on  the  face  of  the  earth  who  would 
swear  to  it.  But  where  there  is  a  will  there  is  a  way.  When  Ahab 
and  Jezebel  wanted  a  vineyard  which  did  not  belong  to  them,  they  got 
two  men  of  Belial  and  set  them  up  before  the  congregation  of  the 
people  to  bear  witness  against  Naboth  that  he  was  guilty  of  blasphemy 
against  God  and  the  king ;  which  was  not  more  false  than  the  accusa 
tion  that  Cox  committed  forgery.  The  Jezreelite  was  stoned,  and  the 
American  secretary  was  driven  out  of  office,  but  it  is  now  tolerably 
well  ascertained  that  both  of  them  suffered  great  wrong. 

As  early  as  1861,  when  it  became  manifest  to  the  claimants  that 
the  fraudulent  decree  of  1858  could  not  hold,  they  worked  up  another 
plot  to  get  another  judicial  decision  by  means  equally  criminal.  It 
was  agreed  among  them  that  a  suit  should  be  instituted  in  their  inter 
ests,  but  apparently  for  the  benefit  of  the  United  States,  and  con 
ducted  by  a  District  Attorney  whom  the  claimants  would  nominate 
and  bribe  to  give  the  cause  away,  as  Ord  gave  it  away  before.  This 
base  plot  could  not  succeed  without  the  connivance  of  the  Attorney- 
General's  office,  which  they  hoped  to  secure.  It  fell  through,  be 
cause  Bates  and  Coffey  could  neither  be  imposed  upon  nor  corrupted. 
All  concerned  in  or  assenting  to  this  vile  conspiracy  were  guilty  of  a 
great  criminal  offense.  McGarrahan's  admission,  that  he  himself 
eagerly  adopted  it  as  ' '  an  entire  new  programme,"  covers  him  and  his 
claim  with  infamy. 

He  brought  several  suits  in  California  against  the  occupants  and 
owners  of  the  mine  after  the  whole  controversy  had  been  finally  and 
irrevocably  determined  against  him  by  the  Supreme  Court  of  the 
United  States — one  upon  his  clandestine  survey,  another  upon  his  pat 
ent,  which  was  never  made — and  he  prosecuted  them  with  unprinci 
pled  pertinacity  through  all  the  courts. 

Defeated,  detected,  and  foiled  in  the  courts,  he  has  vexed  every 
Congress  with  his  appeals,  and  filled  all  the  halls  of  this  Capitol  with 
his  false  clamor.  His  own  admissions,  as  written  out  with  his  own 
hand,  show  that  he  has  partially  succeeded  by  means  unspeakably  base 
and  grossly  criminal. 

Immediately  after  I  expressed  the  opinion  that  the  claim  was  un 
sound,  and  refused  to  dismiss  the  appeal,  McGarrahan  commenced  his 


FORENSIC.  585 

personal  abuse  of  me.  He  still  seems  to  think  that  I  am  the  author 
of  his  troubles,  and  the  architect  of  all  the  ruin  which  has  fallen  upon 
his  schemes.  He  does  me  honor  overmuch.  Any  other  person  in  my 
place  would  have  done  precisely  what  I  did.  No  Attorney-General, 
faithful  to  his  duty,  would  have  suffered  the  Government  to  be  robbed 
by  such  a  bold  and  bungling  fraud.  No  lawyer,  of  the  least  skill  or 
ability,  could  have  failed  to  defeat  it.  My  expression  of  an  opinion 
adverse  to  the  legal  validity  of  the  claim,  called  out  as  it  was  by  the 
claimant  himself,  and  accompanied  by  unanswerable  reasons,  was  cer 
tainly  as  proper  as  it  was  unavoidable.  All  impartial  persons  have 
approved  it.  No  decent  man  will  ever  blame  me  for  it. 

But  McGarrahan  asserts  that  it  was  wrong  in  me  to  move  the  re 
scission  of  the  order  to  docket  and  dismiss.  By  the  use  of  a  false 
transcript  he  had  got  the  court  to  dismiss  an  appeal  that  never  was 
taken,  from  a  decree  that  was  collusive  and  void.  Should  I  have 
allowed  him  to  keep  the  advantage  which  he  had  won  by  this  foul 
play  ?  I  thought  and  still  think  that  my  intervention  to  defeat  this 
trick  was  due  to  Judge  Ogier,  to  the  Supreme  Court,  to  the  interests 
of  the  United  States,  to  the  rights  of  their  alienees,  and  to  the  cause 
of  public  justice  generally.  I  did  defeat  it,  by  simply  making  the 
facts  known  to  the  court.  If  I  had  done  less,  I  would  have  been 
a  party  to  the  outrage. 

He  says  I  used  false  evidence  in  support  of  the  motion.  The  evi 
dence  consisted  of  Judge  Ogier's  official  statement,  the  full  record  of 
the  case,  the  letter  of  McGarrahan  himself,  suggesting  the  falsification 
of  the  transcript,  and  the  sworn  statements  of  the  clerk  and  counsel 
concerned  in,  or  connected  with,  the  case.  These  proofs  were  so 
plainly  proper  and  pertinent  that  the  distinguished  counsel  on  the 
other  side  made  no  effort  whatever  to  suppress  them.  They  were 
given  as  much  time  as  they  asked  for  to  contradict  them  if  they  could. 
The  report  shows  that  Ord's  own  affadavit,  which  was  not  offered 
until  after  the  argument,  was  then  put  in  with  my  consent.  Never 
was  a  judicial  question,  great  or  small,  more  fairly  heard,  more  fully 
proved,  or  more  justly  decided. 

It  is  said  that  the  whole  action  of  the  court  was  wrong,  because  ex- 
parte  affidavits  were  read  on  the  motion  to  dismiss.  Such  affidavits 
can  not  be  used  as  evidence  on  a  final  hearing  against  a  party  who  ob 
jects  to  them.  But  there  is  certainly  not  a  man  on  this  committee 
who  does  not  know  that  they  are  perfectly  proper,  and  always  admitted 
as  the  ground  for  interlocutory  orders,  which  do  not  affect  any  ulti 
mate  rights.  They  were  justly  and  legally  heard  here,  and  heard  with 
out  objection. 

Another  allegation  is  that  the  affidavits,  or  some  of  them,  were 
drawn  up  by  Mr.  Gould  ;  that  they  were  false,  and  that  I  knew  them 
to  be  false.  An  accusation  like  this,  fished  up  from  the  oblivion  of 


586  FORENSIC. 

twenty  years,  might  be  hard  to  answer  as  a  general  rule.  But  in  this 
case  there  is  no  difficulty.  How  could  I  know  that  Mr.  Gould  had 
suborned  witnesses  to  perjure  themselves  ?  What  right  had  I  even  to 
suspect  him  of  such  a  crime  ?  He  was  known  to  me  as  a  man  of  stain 
less  reputation,  surrounded  by  troops  of  friends.  To  this  day  I  have 
heard  no  imputation  upon  his  integrity  except  what  has  come  from 
McGarrahan  or  his  underground  accomplices,  and  only  from  the  low 
est,  even,  of  them.  I  believed  the  evidence  upon  which  the  court 
acted.  I  not  only  believed  those  affidavits  to  be  true  on  every  mate 
rial  point ;  they  were  in  fact  true.  They  were  uncontradicted  at  the 
time,  and  stand  now  corroborated  by  the  admissions  of  the  parties,  by 
the  record  of  the  court,  by  the  statement  of  the  judge,  and  by  all  the 
known  facts  of  the  case. 

You  are  also  told  that  both  Judge  Haight  and  the  Supreme  Court, 
at  my  instance,  violated  the  rule  which  declares  that  a  decision  shall 
not  be  disturbed  after  a  term  has  gone  by.  It  is  true  that  where  a 
case  has  been  heard  and  determined,  and  the  whole  record  fully  made 
up,  it  can  not  at  a  subsequent  term  be  opened  or  altered  to  correct 
mere  errors.  But  everybody  knows,  or  ought  to  know,  that  the  doc 
trine  does  not  apply  to  collusive  or  fraudulent  judgments,  which  are 
merely  void,  and  may  be  so  declared  and  treated  whenever  their  true 
character  is  discovered. 

Again  it  is  charged  that  the  Government,  by  exposing  the  miscon 
duct  of  McGarrahan  and  Ord,  created  a  prejudice  against  them  both, 
which  has  been  a  great  disadvantage  to  them  ever  since.  There  was 
no  prejudice  against  them  in  any  bad  sense.  It  is  true,  however,  that 
the  revelation  of  their  false,  deceptive,  and  criminal  behavior  did  raise 
a  presumption  that  they  were  dishonest  and  unfit  to  be  trusted  in  any 
thing.  It  was  impossible  for  McGarrahan  to  regain  the  status  of  a 
true  man  in  a  court  which  he  had  once  grossly  cheated.  Qui  semel 
est  malus  semper  presmnitur  esse  mains  in  eodem  genere.  Courts 
must  not  put  honest  men  and  detected  knaves  on  a  level — the  logic  of 
the  law  requires  a  difference  to  be  made.  It  is  right ;  it  is  just ;  it  is 
always  so  ;  and  God  forbid  that  it  ever  should  be  otherwise. 

The  soul  of  this  claimant  is  still  further  vexed  by  the  fact  that  I 
have  been,  and  am  now,  the  counsel  of  private  persons  interested  with 
the  United  States  in  defeating  his  fraud.  He  professes  to  believe  that 
after  I  went  out  of  office  I  should  have  dropped  the  case.  So  I  did, 
but  I  took  it  up  again  on  the  retainer  of  the  New  Idria  Company.  I 
believe  I  have  been  employed  three  or  four  different  times.  What  my 
fees  were  is  a  question  between  me  and  my  clients,  but  McGarrahan 
is  welcome  to  the  admission  that  thev  were  much  larger  than  he  knows 
of. 

Is  it  pretended  that  because  I  had  been  Attorney-General,  I  could 
not  afterward  become  a  counselor  in  such  a  case  ?  If  that  be  true,  I 


FORENSIC.  587 

have  sinned  much  and  often,  and  every  other  Attorney-General  has 
habitually  done  likewise.  Nearly  all  of  them  who  practiced  here  have 
been  concerned  in  this  very  same  case  on  one  side  or  the  other — Mr. 
Reverdy  Johnson,  Mr.  Gushing,  Mr.  Stanton,  Mr.  Evarts,  and  two  As 
sistant  Attorneys-General  (Mr.  Gillett  and  Mr.  Coffey).  Have  all  these 
gentlemen  forfeited  their  honor  ?  What  they  have  done,  not  only  in 
this  but  in  many  other  cases,  proves  that  the  foremost  men  in  the  pro 
fession  have  regarded  a  practice  in  this  line  as  perfectly  legitimate. 

But  it  is  asserted  that  no  attorney  or  counselor  whatever  had  a 
right  to  appear  and  act  with  the  Attorney-General,  or  aid  him  in  the 
defeat  of  the  Gomez  claim,  at  the  instance  of  the  New  Idria  Company, 
and  for  a  compensation  paid  by  it.  In  other  words,  the  alienees  of 
the  United  States  can  not  legally  have  their  interests  represented  or 
their  rights  protected  by  counsel  of  their  own  employment,  though 
they,  as  well  as  the  Attorney-General,  may  desire  it  ever  so  much. 
With  all  possible  patience  I  will  give  you  the  reasons  on  which  the 
contrary  view  is  grounded. 

Here  was  a  case  in  which  Vicente  Gomez  and  the  United  States 
were  the  nominal  parties.  But,  in  fact  and  in  truth,  they  were  not 
either  of  them  the  sole  parties  in  interest,  or  even  the  principal  par 
ties.  Gomez  had  sold  his  claim  out  and  out  to  Ord  and  McGarrahan, 
and  the  United  States  had  parted  with  a  portion  of  their  interest  in 
the  subject-matter  of  the  controversy  to  persons  who  had  increased  its 
value  by  large  expenditures  of  money,  time,  and  labor.  The  real  par 
ties  were  Gomez  and  his  alienees  on  the  one  side,  and  the  United 
States  and  their  alienees  on  the  other.  The  vendees  of  Gomez  em 
ployed  their  own  counsel.  At  the  final  hearing,  Mr.  Gushing  and  Mr. 
Stone  declared  themselves  in  the  service  of  McGarrahan  alone.  Doubt 
less  McGarrahan,  as  the  interested  party  on  one  side,  could  properly 
employ  them,  and  pay  them.  But,  if  he  could,  what  decent  pretext 
can  be  set  up  for  saying  that  parties  on  the  other  side  had  not  a  right 
to  defend  themselves  ? 

I  hope  no  argument  is  needed  before  you  to  establish  the  principle 
that  in  every  judicial  proceeding  all  persons  are  entitled  to  be  heard 
whose  rights  of  property  are,  or  may  be,  affected  by  the  result ;  that 
is  to  say,  all  persons  by,  or  against  whom,  the  record  may  be  pleaded 
as  an  estoppel ;  and  this  includes  not  merely  the  nominal  parties,  but 
all  others  who  are  in  privity  of  estate  with  them.  Here,  a  final  de 
cree  against  the  United  States  would  have  been  fatal  to  the  rights  of 
the  New  Idria  Company,  just  as  certainly  as  the  decree  against  Gomez 
was  destructive  to  the  pretensions  which  McGarrahan  set  up  under 
him.  No  court  ever  ruined  any  citizen  by  a  conclusive  judgment 
against  him,  without  giving  him  an  opportunity  to  be  heard. 

All  the  most  important  of  these  California  claims  were  argued  by 
counsel  who  bore  exactly  the  same  relation  to  their  clients  that  I  did 


588  FORENSIC. 

to  mine  in  this  case.  While  in  office  I  was  associated  in  that  way 
with  the  most  illustrious  men  in  the  profession,  and  after  I  went  out 
I  became  concerned  in  numerous  cases  for  settlers,  owners,  occupants, 
and  vendees  of  the  United  States  against  illegal,  void,  and  fabricated 
claims.  My  successors,  as  well  as  my  predecessors,  believed  the  prac 
tice  perfectly  honorable,  and  encouraged  it  for  reasons  of  policy  as 
well  as  from  a  sense  of  justice.  It  was  universally  known,  and  as  uni 
versally  approved  by  bench  and  bar  and  country.  No  human  being,  so 
far  as  I  know,  ever  made  a  suggestion  that  there  was  anything  wrong 
about  it,  except  McGarrahan  or  somebody  in  his  interest. 

The  gentlemen  who  support  the  McGarrahan  side  of  this  case  know 
very  well  that  if  they  had  been  in  my  situation  they  would  have  acted 
as  I  did.  If  Mr.  Carpenter,  Mr.  Wilson,  Mr.  Ingersoll,  Mr.  Shella- 
barger,  or  General  Logan  had  been  at  the  head  of  the  Law  Department 
when  this  claim  made  its  appearance  there,  they  would  have  shown  it 
no  favor  at  all.  Either  one  of  them  would  have  exposed  the  falsified 
transcript  and  got  the  mandate  revoked  ;  either  would  have  given  in 
structions  to  strike  out  the  collusive  decree  of  confirmation  and  get 
an  honest  hearing  in  the  District  Court,  and,  failing  in  that,  he  would 
have  demanded  an  appeal  to  the  Supreme  Court,  and  there  he  would 
have  spoken  up  for  a  decision  according  to  the  very  right  of  the  cause. 
This  either  of  these  gentlemen  would  have  done  as  public  duty  while 
in  office,  and  if  honorably  retained  afterward  by  a  party  claiming 
under  the  United  States  he  would  have  continued  his  labors  until  his 
clients  got  justice. 

But  McGarrahan  makes  all  official  or  professional  opposition  to 
his  claim,  however  just  and  proper,  a  ground  of  personal  quarrel. 
The  fairest  and  most  legitimate  resistance  to  his  fraud  fills  him  with 
rancorous  malice.  Because  I  did  not  pronounce  his  fabricated  title  a 
good  one  he  declared  that  he  would  suffer  any  annoyance,  or  encoun 
ter  any  personal  risk,  to  get  his  revenge  out  of  me.  I  do  not  doubt 
that  he  would  poison  me  if  he  could.  It  would  be  mere  suicide  in  me 
to  drink  from,  a  cup  in  which  he  had  an  opportunity  to  drop  strych 
nine,  or  to  sleep  in  a  room  where  he  could  stab  me  without  being  dis 
covered. 

Not  less  diabolical  is  the  spirit  he  displayed  to  Mr.  Stanton,  whose 
life  would  not  have  been  worth  a  pin's  fee  if  he  had  held  it  at  the 
mercy  of  McGarrahan.  Yet  the  only  offense  which  even  his  malig 
nity  ever  charged  against  Stanton  is  that,  being  Attorney-General,  he 
would  not  betray  his  trust — would  not  be  corrupted  by  the  present  of 
a  cadetship,  worth  in  the  market  from  three  to  five  thousand  dollars — 
would  not  accept  a  "  slice  "  of  the  fraud,  and  go  into  the  boat  with 
him  and  Ord.  Simply  and  solely  because  Mr.  Stanton  was  honest  and 
faithful,  and  for  no  other  reason  assigned  or  assignable,  McGarrahan 
finds  no  name  to  call  him  by  but  thief  and  scoundrel. 


FORENSIC.  589 

You  need  not  be  told  that  Mr.  Bates  was  a  most  learned  lawyer, 
and  a  gentleman  of  unsullied  character  ;  nor  is  it  worth  while  to  re 
mind  you  of  the  unflinching  fidelity  and  vigorous  talents  with  which 
his  assistant,  Mr.  Coffey,  performed  his  duties.  But  "both  of  them 
adhered  conscientiously  to  the  opinion  placed  on  record  by  their  prede 
cessor,  that  the  fraud  was  a  fraud  and  ought  to  be  opposed  ;.  therefore, 
and  therefore  only,  Mr.  Bates  is  denounced  as  an  imbecile,  and  Mr. 
Coffey  as  something  worse. 

Mr.  Evarts  made  an  argument  in  which  the  case  was  discussed 
with  uncommon  ability,  and  at  the  same  time  with  the  utmost  candor 
and  fairness,  but  it  proved  beyond  a  question  that  the  claim  was  un 
sound,  and  that  it  had  been  prosecuted  corruptly.  The  incontrovert 
ible  truth  of  the  speech  transported  McGarrahan  with  rage,  and  he 
declared  that  the  only  way  to  deal  with  the  author  of  it  was  to  use 
the  bullet  and  the  bowie-knife  upon  him,  and  added,  "  It  will  come  to 
that  yet."  He  ought  to  be  beheaded  or  disemboweled,  and  he  (Mc- 
Garrahan)  would  do  it  himself,  if  he  could  get  nobody  else  to  under 
take  it. 

I  am  well  aware  that  talk  like  this  is  generally  thought  to  mean 
very  little,  and  that  is  true  if  it  be  uttered  by  a  ruffian  at  the  moment 
when  his  coarse  passions  are  suddenly  roused.  But  when  a  swindler 
deliberately  sits  down  and  writes  out  to  a  confidential  correspondent 
his  intention  to  take  the  life  of  a  man  who  has  balked  his  fraudulent 
purpose,  he  shows  his  real  nature.  It  means  thirst  for  blood  as  plainly 
as  the  howl  of  the  wolf. 

Mr.  Hoar  argued  in  the  Supreme  Court  the  case  of  McGarrahan 
vs.  The  Secretary.  He  demonstrated  the  law  of  the  case,  and  ex 
posed  the  naked  falsehood  of  the  grounds  upon  which  the  plaintiff  in 
error  had  got  the  judgment.  Perhaps  that  natural  law  of  right  and 
scorn  of  wrong,  for  which  he  is  so  well  known,  was  somewhat  impress 
ively  manifested.  This  was  the  unpardonable  sin,  for  which  McGar- 
rahan  classes  him  with  Evarts  and  others  as  a  vagabond  and  a  rascal. 

The  brutal  language  he  uses  about  General  Butler — too  indecent 
to  be  repeated — might  pass  for  a  fool-born  jest,  if  spoken  in  conversa 
tion,  or  it  might  be  taken  for  the  ribaldry  of  a  braggart,  if  uttered  in 
heat ;  but  written  and  sent  to  an  accomplice,  it  brings  him  squarely 
within  Sir  Michael  Foster's  definition  of  malice,  inasmuch  as  it  shows 
"a  heart  regardless  of  social  duty  and  fatally  bent  on  mischief." 
General  Butler  had  supported  him  against  the  mining  company  until 
investigation  made  him  doubt  whether  either  party  had  a  good  right, 
and  he  expressed  the  opinion  that  the  title  was  still  in  the  United 
States.  For  this  offense  only  he  wants  him  disemboweled  and  muti 
lated. 

It  is  curious  how  steadily  he  adheres  to  his  one  standard  of  right 
and  wrong.  All  who  refuse  their  aid  to  his  fraud  are  rascals,  black- 


590  FORENSIC. 

hearted,  and  base.  He  found  the  officials  of  the  Government  here 
unanimous  in  their  opposition  to  his  bogus  claim.  He  applies  his 
measure,  and  announces  as  the  result  that  the  higher  the  position 
the  greater  the  scoundrel.  He  finds  this  to  be  especially  true  of  the 
Lincoln  Administration  and  its  adherents,  after  trying  it  only  ten 
days. 

All  judges  who  decide  against  him,  or  hold  that  his  impostures 
shall  not  avail  him  in  law,  are  abused  with  equal  violence.  Judge 
Ogier  is  bitterly  maligned,  and  the  judges  of  the  Supreme  Court  are 
declared  to  be  corrupt,  partial,  and  dishonest. 

The  members  of  Congress  who  investigated  the  case  and  concluded 
that  he  had  no  right  to  property  which  was  vested  in  others  by  the 
terms  of  a  judicial  decree,  are  spoken  of  in  the  same  way.  The 
House  Committee  of  1871  are  reported  upon  in  his  letters.  It  looks 
to  him,  he  says,  as  if  Mercur  was  bought  by  Peters.  Those  who  voted 
against  the  fraud  are  enumerated  by  name,  and  pronounced  "  all 
thieves  without  influence." 

But  the  most  inexcusable  of  all  his  slanders  is  that  upon  Mr.  Cox, 
the  Secretary  of  the  Interior.  I  would  not  make  individious  compari 
sons  between  the  several  distinguished  gentlemen  who  have  graced 
that  high  office  by  holding  it ;  but  if  there  be  one  among  them  all 
whose  unimpeachable  purity,  united  with  great  talents,  entitles  him 
to  stand  primus  inter  pares,  this  special  victim  of  McGarrahan's  vitu 
peration  may  safely  claim  to  be  the  man.  Of  course  he  frowned  upon 
the  false  pretense  that  McGarrahan  was  entitled  to  a  patent  on  his  re 
jected  claim.  He  put  his  foot  upon  the  lie  that  there  was  one  in  the 
office  already  signed  by  the  previous  President ;  he  produced  the  un 
executed  paper  and  showed  that  no  signature  was  there  ;  and  across 
an  unauthorized  copy  in  the  register  he  caused  the  truth  to  be  written 
— that  it  was  not  a  record,  but  the  blunder  of  a  clerk.  McGarrahan 
went  to  General  Grant  with  the  charge  that  the  Secretary  had  dishon 
estly  altered  and  mutilated  the  records,  to  the  prejudice  of  his  rights. 
General  Grant  opened  his  ears  to  the  slanderous  story.  Mr.  Cox  ex 
plained  fully,  and  closed  by  saying  that  he  had  fought  fraud  with 
what  vigor  he  could,  and  if  he  was  not  to  be  sustained,  he  wished  to 
be  relieved  from  the  duty.  But  the  mind  of  the  President  had  be 
come  so  biased  by  McGarrahan  that  he  would  not  sustain  his  Secre 
tary.  Thereupon  Mr.  Cox  was  obliged  to  retire,  with  the  blistering 
charge  of  forgery  fastened  upon  him  by  an  impudent  impostor.  Mc 
Garrahan  gloated  over  his  work  ;  he  thought  the  Secretary  was  ruined 
— his  life's  life  lied  away  forever  ;  and  he  raised  the  shout  that  "  Cox 
was  dead  and  damned."  The  sun  in  heaven  never  looked  down  on 
anything  more  basely  unjust. 

It  is  easy  to  repel  the  direct  attacks  of  his  malice  upon  the  men 
whose  fidelity  to  duty  has  made  him  their  avowed  enemy,  but  hard  to 


FORENSIC.  591 

defend  those  whom  he  treacherously  stabs  while  professing  his  grati 
tude  and  admiration.  His  hate  is  harmless,  but  his  love  blights  like 
a  pestilence.  It  is  not  the  bite  but  the  slaver  that  poisons.  He  is 
the  hardest  of  all  fraudulent  claimants  to  deal  with.  If  yeu  oppose . 
him,  he  pours  out  his  malignity  in  torrents  of  vulgar  abuse ;  if  you 
support  and  defend  him,  he  chuckles  over  your  infamy,  brags  that 
he  has  bought  you,  and  tells  what  price  he  is  to  pay  for  your  con 
science. 

The  distinguished  and  honorable  gentlemen  who  support  the  claim 
ants  before  you  must  be  shocked  beyond  measure  to  find  that  others 
who  have  served  the  same  cause  as  honestly  as  they  serve  it  now  are 
rewarded  by  imputations  of  the  foulest  corruption.  Their  natural 
impulse  is  to  deny  indignantly  McGarrahan's  accusations,  that  the 
advocates  of  the  claim  in  Congress  and  in  the  executive  offices  were 
bought  with  a  price.  But,  unfortunately,  they  can  not  make  the 
proper  defense  without  acknowledging  that  their  client  is  utterly  un 
worthy  of  belief  in  everything  he  says  or  swears  about  friend  or  foe. 
Their  hands  being  tied  up,  the  duty  devolves  upon  us. 

McGarrahan's  general  statements  about  his  underground  move 
ments,  and  the  evil  influences  he  brought  to  bear,  when  considered  in 
connection  with  the  palpable  dishonesty  of  the  claim  itself,  are  calcu 
lated  to  bring  a  certain  amount  of  discredit  upon  all  who  have  shown 
it  the  least  countenance.  But  I  am  as  certain  as  I  am  of  my  own  life 
that  many  of  these  gentlemen,  if  not  all  of  them,  were  sincere  believ 
ers  in  the  rectitude  of  the  measures  they  voted  for.  They  were  not 
corrupted,  but  deluded  by  the  artful  though  false  accounts  which  Mc- 
Garrahan  and  his  accomplices  laid  before  them.  Against  many  of 
them  he  himself  says  nothing  which,  directly  or  indirectly,  affects 
their  reputation.  It  would  be  most  injuriously  wrong  to  infer  from 
his  mention  of  certain  Senators  and  Representatives  as  great  friends 
of  his  claim,  that  they  were  induced  to  take  that  side  by  any  improper 
considerations. 

Others,  however,  are  brought  within  the  range  of  his  slanderous 
missiles  by  the  lists  which  are  found  in  the  archives  of  the  Panoche 
Grande  Company.  That  corporation  was  entirely  his  own  ;  he  held 
all  the  stock ;  not  a  share  of  it  could  go  into  any  other  hand  without 
his  consent ;  every  officer  and  manager  was  his  agent  and  trustee. 
The  lists,  therefore,  of  the  stockholders  found  on  its  books,  and  certi 
fied  by  its  secretary,  under  the  corporate  seal,  must  have  been  made 
by  his  authority  and  under  his  direction,  given  in  some  form  or  other. 
If  those  lists  were  true,  certain  highly  respectable  gentlemen,  and 
faithful  servants  of  the  public,  would  be  rendered  utterly  infamous  ; 
for  it  would  show  that  their  enthusiastic  support  of  a  false  claim  was 
bought  and  paid  for.  But  the  lists  are  not  true.  They  are  clearly 
proved  to  be  false,  as  regards  several  of  the  gentlemen  implicated, 


592  FORENSIC. 

and,  therefore,  they  are  unreliable  all  through.  Falsus  in  uno,  falsus 
in  omnibus. 

Why  did  McGarrahan  make  these  lists,  or  cause  them  to  be  made, 
certified,  sealed,  and  put  upon  the  records  of  his  corporation  for  a  per 
petual  memory  ?  This  is  hard  to  answer.  A  man  like  him  is  always 
acting  upon  reasons  which  are  incomprehensible  to  others.  He  may 
haye  intended  to  put  this  weapon  away  to  be  used  in  terrorem,  or  to 
punish  recalcitration,  if  either  of  the  men  named  should  recover  from 
their  delusion,  and  incline  to  go  back  upon  him.  If  this  be  not  an 
explanation,  I  must  leave  the  mystery  unsolved. 

But  whatever  may  have  been  his  motive  or  that  of  his  coadjutors, 
these  papers  have  no  probative  force  against  anybody  but  the  authors 
of  them.  They  can  not  affect  others.  They  are  but  the  written  dec 
larations  of  McGarrahan,  and  upon  that  testimony  you  would  not 
whip  your  enemy's  dog  though  he  had  bitten  you. 

Other  members  of  Congress,  with  names  known  and  honored 
throughout  the  country,  are  more  directly  aimed  at  and  hit  much 
worse.  They  threw  the  whole  weight  of  their  powerful  influence  in 
favor  of  the  claim.  McGarrahan  makes  charges  against  them  which, 
if  true,  should  have  sent  them  to  the  penitentiary.  If  by  his  letters 
or  his  oath  he  succeeds  in  fastening  these  accusations  upon  his  devoted 
friends,  he  has  done  them  an  injury  compared  to  which  his  bullet  and 
bowie-knife  would  have  been  visitations  of  mercy. 

I  meet  all  this  with  a  sweeping  denial.  It  is  a  rule  of  law  clearly 
defined,  well  understood,  and  in  modern  times  universally  acknowl 
edged,  that  where  a  party,  admitting  his  own  guilt,  charges  others 
with  being  his  accomplices,  the  confession,  though  good  against  him 
self,  does  not  furnish  a  spark  of  proof  against  the  person  he  tries  to 
implicate.  This  is  not  merely  the  legal  rule,  but  in  a  case  like  the 
present  it  is  the  natural  presumption  which  every  just  man  will  make. 
McGarrahan's  statements,  under  all  the  circumstances,  should  be  taken 
as  strong  prima  facie  evidence  that  the  fact  is  the  other  way. 

General  Sickles  always  told  me  that  he  had  no  interest  of  his  own 
in  this  claim.  No  doubt  he  would  so  swear  if  called  upon  now.  He 
would  deny  positively  that  he  ever  carried  to  Stanton  McGarrahan's 
proposition  to  go  into  the  same  boat  with  him  ;  and  he  would  vindi 
cate  himself  sternly  and  strongly  against  the  charge  that  he  stole  a 
letter  out  of  the  Attorney-General's  office.  But  he  was  not  brought 
here  by  either  party,  and  he  did  not  come  of  his  own  accord,  because 
he  did  not  think  McGarrahan's  slanders  worth  a  contradiction. 

Senator  McDougall  was  a  warm  supporter  of  the  claim,  both  in 
Congress  and  before  the  departments,  and  it  may  be  true  that  he  re 
ceived  considerable  amounts  of  the  stock,  because  there  is  some  evi 
dence  which  corroborates  McGarrahan's  assertion.  But  the  fact  is 
capable  of  being  explained,  and  Mr.  Carpenter's  suggestion,  that  it 


FORENSIC.  593 

was  given  as  the  fee  of  his  law  firm  in  California,  is  probably  correct. 
Any  reasonable  theory,  consistent  with  innocence,  ought  to  be  adopted 
in  the  case  of  a  man  whom  death  has  disarmed  of  the  power  of  self- 
defense. 

The  same  may  be  said  of  Mr.  Hickman.  That  he  advocated  Mc- 
Garrahan  and  his  fraud  through  thick  and  thin  can  not  be  denied. 
But  that  he  was  the  corrupt  wretch  McGarrahan  makes  him  out  to  be 
is  wildly  improbable.  It  is  incredible  that  he  held  a  convocation  at 
his  own  house  to  concoct  that  infamous  scheme  for  getting  a  false 
judgment  by  bribing  the  District  Attorney.  That  there  was  such  a 
scheme,  and  that  McGarrahan  was  intensely  delighted  with  it  and 
tried  to  carry  it  out,  is  no  doubt  true  ;  but  it  will  take  better  evidence 
than  McGarrahan's  to  prove  that  Hickman  was  a  party  to  it.  McGar 
rahan  runs  his  slander  into  the  ground  when  he  swears  that  he  not 
only  paid  Hickman  in  stock,  but  bribed  him  with  money,  which  Hick 
man  accepted  reluctantly.  It  is  much  more  likely  that  he  furnished 
money  to  McGarrahan  ;  and  his  reluctance  was  expressed  to  find  him 
self  fleeced. 

The  two  Blairs — one  of  them  Postmaster- General  and  the  other  a 
leading  member  of  Congress,  expecting  to  be  Speaker  —  are  repre 
sented  as  being  in  such  relations  with  McGarrahan  that  he  fears  he 
can  not  hold  them  without  a  cash  retainer,  which  he  expects  them  to 
demand.  But,  according  to  his  own  account,  he  held  them  somehow, 
and  held  them  very  tight.  When  the  country  was  agonizing  in  the 
first  throes  of  a  great  convulsion  he  astonished  the  public  by  absorb 
ing  the  Blairs  as  well  as  other  great  statesmen.  The  cabinet  officer 
came  and  went  at  his  bidding,  to  fetch  and  carry  and  do  his  dirty 
work  as  he  commanded.  The  member  of  Congress  became  the  bond 
slave  of  the  fraud,  and  arranged  the  corruptest  plans  of  promoting  it 
against  all  justice  and  all  truth ;  for  which  services  he  was  paid  by 
large  slices  of  stock.  The  survivor  of  these  two  brothers  has  publicly 
declared  that  he  never  had  a  dollar  of  the  stock,  and  does  not  believe 
that  the  deceased  one  ever  had.  We  accept  this  denial.  I  go  further, 
and  I  assert  that  Montgomery  Blair  never,  at  any  time,  did  anything 
in  this  business  but  what  he  might  honorably  do  for  a  client  by  whom 
he  was  legally  retained  after  he  went  out  of  office.  As  to  Frank  Blair, 
neither  McGarrahan's  letters,  nor  the  records  of  his  swindling  corpora 
tion,  nor  his  oath,  can  justify  the  belief  that  he  would  so  prostitute 
himself.  No  son  of  his  great  father  would  "sell  the  mighty  space  of 
his  large  honors  for  so  much  trash  as  could  be  grasped  thus. " 

He  does  not  stop  with  maligning  his  executive  .and  legislative 
friends.  The  surveyors  who  served  him  by  surreptitiously  laying  his 
claim  where  he  wanted  it,  and  the  District  Attorneys  that  he  relied  on 
to  favor  him,  were  acting,  if  he  tells  the  truth,  for  bribes,  which  he 
paid,  or  promised  to  pay  them.  He  takes  care  that  even  the  judges 

38 


594:  FORENSIC. 

who  decided  in  his  favor  on  any  branch  of  the  case,  shall  not  have 
credit  for  impartiality  or  fairness.  Judge  Haight  was  pledged  before 
his  appointment  to  resist  all  the  influences  of  justice ;  and  while  his 
application  for  a  mandamus  was  pending  against  the  Secretary  of  the 
Interior,  he  represents  the  judges  of  this  district  as  listening  privately 
to  the  most  indecent  solicitations,  and  making  secret  arrangements 
about  their  decisions.  He  describes  them  as  loafing  in  his  room, 
drinking  his  whisky,  and  discussing  his  case  with  him  over  their  cups. 
His  picture  makes  them  a  disgrace  to  the  administration  of  justice. 
He  permits  nobody  to  escape  his  filth.  Like  a  foul  bird  of  prey,  his 
obscene  droppings  are  everywhere,  and  always  most  offensive  in  the 
most  sacred  places. 

It  will  be  said  that— it  has  already  been  said — that  this  is  irrele 
vant  matter/  I  maintain  that  it  is  eminently  proper  and  just  to  put 
the  absent  and  the  undefended  in  their  proper  places.  Do  you  think 
we  should  allow  such  calumnious  accusations  to  pass  unrebuked  and 
uncontradicted  merely  because  they  concern  men  who  have  been  our 
opponents  ?  Shall  we,  if  we  can  help  it,  permit  these  aspersions  to 
rest  like  a  dark  cloud  forever  on  the  memory  of  innocent  people  ? 
No,  by  the  honor  of  the  living,  and  by  the  green  graves  of  the  dead, 
we  will  not. 

To  let  them  stand  wholly  without  denial  would  be  extremely  dan 
gerous.  The  world  will  ask  why,  if  they  are  false,  did  McGarrahan 
make  them  against  his  friends  ?  His  slanders  upon  us  can  be  under 
stood  ;  his  malignity  accounts  for  them.  But  these  are  men  for  whom 
he  professes  admiration,  respect,  and  gratitude.  That  he  should  delib 
erately  impute  crime  and  corruption  to  them  is  amazing,  unless  it  was 
true.  I  repeat  that  I  am  not  bound  to  account  for  McGarrahan's 
conduct.  He  is  not  like  other  men.  The  whole  make-up  of  his  mind 
is  abnormal.  He  manifestly  believes  that  a  public  officer  who  per 
forms  his  duty,  unawed  by  influence,  and  unbribed  by  gain,  is  un 
worthy  of  the  slightest  respect.  Such  a  man  he  uniformly  calls  thief 
or  scoundrel ;  thinks  he  ought  to  be  impeached,  and  wants  to  kill  him 
or  take  his  bowels  out.  In  his  estimation,  therefore,  a  member  of 
Congress,  or  an  executive  officer,  honors  himself  by  being  unfaithful  to 
his  trust ;  he  considers  him  meritorious  in  proportion  as  he  is  corrupt ; 
and  this  explains  the  strange  fact  that  he  mingles  his  charges  of  dis 
honesty  with  terms  of  endearment  and  eulogy.  It  is  his  way  of  prais 
ing  his  friends. 

That  is  one  explanation ;  there  is  another  :  Franck,  to  whom  most 
of  these  letters  were  addressed,  had  a  little  money.  McGarrahan  took 
him  into  the  fraud,  and  dazzled  him  with  the  prospect  of  becoming 
a  millionaire.  To  inspire  him  with  confidence,  and  make  him  bleed 
freely,  it  was  necessary  to  tell  him  that  these  powerful  gentlemen  were 
enlisted  heart  and  soul  in  the  same  enterprise,  and  he  would  not  credit 


FORENSIC.  595 

that  unless  he  was  convinced  that  they  had  a  pecuniary  interest  in  it. 
McGarrahan  did  not  scruple  to  practice  the  proper  amount  of  decep 
tion. 

But  somebody  may  ask  why  we  did  not  suppress  these  scandalous 
papers.  We  introduced  them  here  for  a  purpose  eminently  proper — 
to  show  that  the  claimants  had  been  prosecuting  their  case  in  the 
courts,  in  the  Land-Office,  and  in  Congress  by  appliances  that  were 
grossly  immoral  and  deceptive.  The  letters  do  make  that  perfectly 
clear.  They  are  the  claimant's  confession  that  he  has  acted  through 
out,  from  the  beginning  to  the  present  time,  as  nobody  would  act  who 
was  not  a  most  redemptionless  rogue.  As  against  him  they  prove  with 
irresistible  force  that  the  case  is  saturated  with  corruption.  It  was 
unlucky,  to  be  sure,  that  he  did  not  put  the  admissions  of  his  own 
guilt  and  his  charges  against  other  persons  in  separate  papers.  He 
joined  them  together  so  that  we  could  not  exhibit  one  without  the 
other.  That  was  no  fault  of  ours.  We  have  done  our  best  to  prevent 
them  from  injuring  the  innocent,  and  we  produced  as  few  of  them 
as  possible.  We  have  hundreds  more  behind  these.  If  our  learned 
friends  on  the  other  side  knew  how  much  of  this  scandal  we  did  not 
show,  they  would  not  complain  of  what  we  did  show. 

I  might  extend  these  remarks,  but,  cui  bono  ¥  You  know  the  his 
tory  of  the  fraud.  You  will  decide  according  to  your  duty.  Our  ex 
posure  of  it  may  be  a  warning  to  prevent  others  from  engaging  in  such 
affairs.  At  all  events,  we  expect  that  no  prudent  man  will  ever  again 
go  into  this  leaky  boat  of  McGarrahan's  ;  for  all  who  do  are  sure  to  be 
wrecked  sooner  or  later.  It  is  a  fatal,  a  most  perfidious  bark,  "built 
in  the  eclipse,  and  rigged  with  curses  dark." 


FEDERAL  JURISDICTION  IN  THE  TERRITORIES.— RIGHT 
OF  LOCAL  SELF-GOVERNMENT. 

BEFORE   THE   JUDICIARY    COMMITTEE    OF   THE   HOUSE    OF   REPRESENTATIVES. 

Mr.  Chairman  and  Gentlemen  of  the  Committee : 

I  AM  here  with  your  permission,  and  at  the  request  of  the  people  of 
Utah,  to  discuss  their  rights  and  the  powers  of  the  Federal  Govern 
ment  to  control  them. 

If  you  think  for  a  moment  how  much  they  may  suffer  by  your 
legislation,  and  remember  that  they  have  no  vote  in  either  House  of 
Congress,  I  trust  you  will  hear  without  objection  the  defense  of  their 
counsel,  and  permit  him  to  show,  if  he  is  able,  that  the  hostile  meas 
ures  passed  and  proposed  against  them  are  unjust  and  unconstitutional. 

Though  I  claim  nothing  for  those  people  on  the  score  of  their 


596  FORENSIC. 

merits,  yet  their  behavior  and  character  ought  not  to  be  misunder 
stood.  It  is  said  (with  how  much  truth  you  know  as  well  as  I)  that 
they  are  sober,  honest,  peaceable,  upright,  and  qharitable,  not  only  to 
one  another,  but  to  the  stranger  within  their  gates.  The  records  show 
them  to  be  singularly  free  from  the  crimes  forbidden  in  the  Decalogue, 
and  not  at  all  addicted  to  the  vulgar  vices  which  often  deform  the 
character  of  frontier  communities.  Their  territorial  government  has 
been  conducted  with  surprising  purity,  wisdom,  and  justice.  Simple 
in  its  machinery,  and  impartial  in  its  laws,  its  burdens  are  light  and 
its  protection  universal ;  no  cheating  at  elections,  no  official  defalca 
tions,  no  special  taxes,  and  not  a  dollar  of  public  debt. 

They  profess  almost  universally  a  religion  of  their  own,  for  which 
they  are  daily  reviled  and  insulted  ;  but  they  make  no  legal  discrimi 
nation  against  the  faith  of  those  who  dissent  from  them  ;  there  is  no 
trace  of  intolerance  in  their  enactments,  and  the  constitution  framed 
by  themselves,  and  under  which  they  ask  for  admission  as  a  State, 
guarantees  to  every  human  being  the  most  perfect  freedom  in  matters 
of  worship  and  conscience.  Nowhere  on  earth  has  the  value  of  local 
self-government  been  so  strikingly  attested  by  the  success  of  the  peo 
ple  who  enjoyed  it.  Thirty-six  years  ago  the  valley  of  Salt  Lake  was 
the  most  forlorn  and  dreary  region  on  the  surface  of  the  globe — a 
mere  waste,  which  produced  literally  nothing.  But  under  the  stimu 
lus  of  civil  and  religious  liberty  these  Mormons  struggled  against  all 
the  obstacles  of  nature.  By  a  system  of  irrigation,  amazing  for  its 
extent,  ingenuity,  and  cost,  they  brought  ample  supplies  of  water 
from  the  distant  mountains  down  upon  the  plains,  and  by  their  perse 
vering  industry  they  converted  that  rainless  desert  into  a  land  of 
plenty,  covered  with  fruitful  farms  and  thriving  towns. 

I  think  that,  under  these  circumstances,  it  would  be  an  infinite 
pity  to  strike  the  Territory  of  Utah  with  the  curse  of  political  slavery, 
to  deprive  the  people  of  their  local  government,  and  deliver  them  up, 
naked  and  defenseless,  to  be  sacked  and  pillaged  by  their  enemies. 
But  let  it  be  understood  that  I  am  not  asking  for  mercy.  If  you  have 
the  constitutional  power  you  must  exercise  it  as  you  please. 

There  are  many  reasons  which  naturally  incline  an  American 
statesman  to  do  all  the  harm  he  possibly  can  to  the  people  of  Utah. 
They  are  powerless  to  resist  it.  They  have  not  a  single  vote  in  the 
National  Legislature,  and  can  not  exercise  the  slightest  influence  on  a 
presidential  election.  They  are  excluded  from  all  political  rings ; 
they  can  not  be  anybody's  competitor  for  the  spoils  of  office  ;  they  can 
make  or  mar  no  scheme  to  save  or  squander  the  public  money.  On 
the  other  hand,  the  whole  country  outside  of  their  own  Territory  is 
populous  with  their  enemies,  whom  you  must  conciliate  and  gratify  if 
you  can  do  so  with  a  safe  conscience,  for  they  have  votes,  and  power 
and  influence  which  will  not  be  opposed  without  danger. 


FORENSIC.  59Y 

The  religion  which  the  people  of  Utah,  adhere  to  with  so  much 
tenacity  is  regarded  in  other  parts  of  the  country  with  extreme  dis 
like,  as  the  mere  superstition  of  an  upstart  sect.  No  man,  however, 
who  has  the  faintest  perception  of  Christian  principles,  thinks  it  right 
to  kill  or  plunder  or  outlaw  them  for  holding  an  erroneous  faith. 
From  real  Christianity  there  comes  no  howl  for  the  blood  and  prop 
erty  of  the  Mormons.  But  in  other  quarters  the  most  rancorous 
hatred  breaks  out.  By  some  famous  preachers  the  policy  of  killing 
the  Mormons  by  wholesale,  unless  they  leave  their  property,  abandon 
their  homes,  and  flee  beyond  the  Union,  is  openly  advocated,  and  ap 
parently  concurred  in  with  great  warmth  by  congregations  supposed 
to  be  respectable  ;  and  this  is  accompanied  with  curses  loud  and  deep 
upon  all  who  would  interpose  a  constitutional  objection  to  that  method 
of  dealing  with  them.  When  we  read  of  such  things  in  history  we 
are  apt  to  think  them  diabolical.  But  approved  as  they  are  now  and 
here  by  popular  judgment,  and  unrebuked  even  by  senatorial  wisdom, 
we  must  concede,  I  suppose,  that  it  is  very  good  taste  and  refined 
humanity  disguised  in  a  new  dress.  As  a  general  rule,  political  piety, 
wherever  it  has  turned  up  the  whites  of  its  eyes  in  this  country  or  in 
Europe,  is  a  sham  and  a  false  pretense ;  but  in  this  exceptional  case 
it  would  be  speaking  evil  of  dignities  to  call  it  hypocrisy.  The  sound 
ness  of  the  religion  which  slanders  a  Mormon  is  not  to  be  questioned. 
Equally  pure  is  the  act  of  a  re  turning- officer  who  fraudulently  certifies 
the  election  of  an  anti-Mormon  candidate,  known  to  be  defeated,  by  a 
majority  of  more  than  fifteen  to  one,  nor  will  we  attribute  any  sordid 
motive  to  those  residents  of  Utah,  official  and  private,  who  busy  them 
selves  here  and  at  home  to  break  down  the  territorial  government, 
seize  its  offices,  and  grab  its  money.  Their  righteous  souls  are  vexed 
from  day  to  day  by  the  mere  fact  that  sinful  men  are  allowed  to  live 
peaceful  and  prosperous  lives.  They  are  animated  solely  by  disinter 
ested  zeal  for  the  advancement  of  the  Lord's  kingdom,  which  in  their 
judgment  would  be  much  obstructed  by  the  further  continuance  of 
free  government  in  Utah. 

But  the  case  does  not  depend'  on  the  merits  or  demerits  of  the  par 
ties.  It  is  not  a  question  what  measure  of  punishment  the  people  of 
Utah  deserve  for  their  wickedness,  but  what  Congress  has  a  right  to 
inflict.  "Whatever  may  be  the  superior  sanctity  of  the  holy  men  who 
promote  this  legislation,  they  can  not  be  gratified  at  the  expense  of  a 
breach  in  the  Constitution.  If  you  shall  be  satisfied  that  you  have  no 
power  in  the  premises,  you  will  not  usurp  it ;  for  that  would  be  a 
hideous  crime,  of  which  you  are  wholly  incapable.  Before  I  go  fur 
ther  let  me  vindicate  the  justice  of  this  censure,  not  because  you  doubt 
it  (for  that  is  impossible),  but  merely  to  stir  up  your  pure  minds  by 
way  of  remembrance. 

Mr.  Grote,  the  most  learned  and  thoughtful  of  modern  historians, 


598  FORENSIC. 

has  shown  by  divers  examples  that  fidelity  to  the  fundamental  law — 
which  he  terms  constitutional  morality — is  the  one  indispensable  con 
dition  upon  which  the  safety  and  success  of  every  free  government 
must  depend.  The  high  career  of  Athens,  from  the  expulsion  of  the 
Peisistratids  to  a  period  after  the  death  of  Pericles — the  marvel  and 
the  admiration  of  all  time — was  plainly  due  to  the  faithful  practice  of 
this  supreme  virtue.  It  was  this  that  made  the  steady  Roman  strong 
enough  to  shake  the  world.  England  observes  not  only  the  theories 
but  the  minutest  forms  of  her  constitution,  when  legislating  for  her 
own  people,  and  that  has  given  her  domestic  tranquillity  and  solid 
power  at  home  ;  her  shame  and  her  misfortunes  are  all  traceable  to 
the  disregard  of  it  in  dealing  with  colonies  and  outside  dependencies. 
Constitutional  morality  was  cherished  and  inculcated  by  our  fathers, 
in  the  early  ages  of  the  Republic,  as  the  great  principle  which  should 
be  the  sheet-anchor  of  our  peace  at  home  and  our  safety  abroad,  and, 
to  the  end  that  it  might  never  be  forgotten,  they  imposed  a  solemn 
oath  upon  every  legislator  and  every  officer  to  keep  it  and  observe  it 
with  religious  care  at  all  times  and  under  all  circumstances.  In  con 
trast  with  the  self-imposed  restraints  of  the  American  democracy, 
Grote  mentions  the  French,  a  nation  high  in  the  scale  of  intelligence, 
but  utterly  destitute  of  attachment  to  any  constitution  or  any  form  of 
government,  except  as  a  matter  of  present  convenience.  You  know 
what  came  of  it — eleven  revolutions  in  less  than  eighty  years — a  his 
tory  filled  with  wrong  and  outrage — a  people  forever  alternating  be 
tween  abject  slavery  and  the  license  of  ferocious  crime. 

It  is  as  plain  as  the  noonday  sun  that  without  constitutional  mo 
rality  every  pretense  of  patriotism  must  be  false  and  counterfeit.  The 
man  who  says  he  loves  his  country,  and  yet  strikes  a  fatal  blow  at  the 
organic  law  upon  which  her  life  depends,  shows  his  sincerity  as  Nero 
proved  his  filial  affection  when  he  killed  his  mother  and  mutilated  her 
body. 

A  violation  of  constitutional  law  is  not  an  offense  which  is  ever 
made  venial  by  the  occasion.  You  can  not  do  evil  that  good  may 
come.  The  evil  is  there,  and  the  good  never  comes. 

No  matter  how  unimportant  the  breach  may  seem  ;  though  small 
at  first,  it  will  widen  like  a  crevasse  in  the  Mississippi,  until  the  whole 
stream  of  arbitrary  power  goes  rushing  through  it.  Besides,  the  grade 
of  a  crime  is  not  measured  by  the  extent  of  the  particular  mischief. 
Forgery  is  forgery,  whether  the  sum  obtained  by  it  be  great  or  small, 
and  murder  is  not  mitigated  by  showing  that  the  victim  was  short  of 
stature. 

It  often  happens  that  legislators,  as  well  as  other  men,  feel  them 
selves  hampered  by  such  restrictions  ;  but  that  does  not  authorize  dis 
regard  of  them.  You  can  not  break  lawlessly  over  the  Constitution 
because  it  confines  you  to  limits  inconveniently  narrow. 


FORENSIC.  599 

In  this  country  all  men  and  all  classes  are  equal.  No  one  can  law 
fully  say  to  another,  "  Stand  aside,  I  am  holier  than  thou,"  and  push 
him  from  his  place  on  the  platform  of  the  Constitution.  Superior 
sanctity  is  not  a  thing  to  be  safely  believed  ;  it  is  easily  simulated  ;  it 
is  often  false ;  and,  when  it  comes  into  politics,  it  is  almost  universally 
put  on  to  cover  some  base  and  malicious  design.  The  Scribes  and  the 
Pharisees  were  hypocrites. 

The  party  whose  rights  are  injuriously  affected  by  vicious  acts  of 
Congress  outside  of  the  Constitution  may  be  weak  and  defenseless,  the 
inhabitants  of  a  distant  Territory,  and  the  members  of  an  unpopular 
sect  whose  complaint  can 'not  reach  the  general  ear,  and  would  excite 
no  sympathy  if  it  did.  But  these  are  the  very  considerations  which 
plead  most  strongly  against  the  usurpation  of  ungranted  power  to 
destroy  them.  This  is  no  appeal  to  your  magnanimity,  but  a  mere 
suggestion  that  the  Constitution  was  made  most  especially  for  the 
weak. 

We  are  not  all  agreed  about  the  wisdom  of  the  Constitution,  or  the 
virtue  of  the  men  who  made  it ;  but  whether  you  like  or  loath  it,  you 
are  equally  bound  to  obey  it.  You  do  not  lessen  this  obligation  one 
whit  by  railing  at  it.  When  you  break  it  you  do  not  diminish  your 
guilt  in  the  least  by  calling  it  an  agreement  with  death,  and  a  cove 
nant  with  hell. 

Nor  can  you  change  the  nature  or  lessen  the  degree  of  the  wrong 
by  your  own  contemptuous  feeling  for  the  object.  He  may  be  alto 
gether  unworthy  of  your  favor,  but  you  owe  him  justice,  and  you 
must  pay  the  debt  to  the  uttermost.  A  legal  right  is,  in  and  of  itself, 
a  very  respectable  thing,  however  much  you  may  hate  and  despise  the 
man,  or  body  of  men,  that  sets  it  up. 

Moreover,  constitutional  morality  means  general  morality  in  all 
things  public  and  private,  and  the  converse  of  the  proposition  is  also 
true.  Political  power,  under  our  system,  is  a  trust  given  and  ac 
cepted  upon  certain  covenanted  terms,  and  to  be  executed  within  cer 
tain  limitations.  A  willful  breach  of  this  trust,  by  transgressing  its 
limitations,  perverting  its  purposes,  or  violating  its  conditions,  is  an 
act  of  personal  dishonesty  which  not  only  corrupts  the  officer  who 
commits  it,  but  demoralizes  all  other  citizens  who  are  tempted  by 
their  personal  or  party  attachments  to  defend  or  apologize  for  the 
wrong.  Thus  the  floodgates  of  iniquity  are  set  wide  open — all  that  is 
pure  in  morals,  all  that  is  perfect  in  politics,  all  that  is  holy  in  relig 
ion,  are  swept  away  ;  the  public  conscience  swings  from  its  moorings, 
the  baser  passions  become  masterless,  and  rapacity  riots  in  the  spoils 
of  its  lawless  victories.  If  you  are  not  satisfied  with  a  free  Constitu 
tion,  honestly  obeyed,  give  us  a  despotism,  but  save  us  from  a  rotten 
republic  if  you  can. 

I  have  not  offered  this  feeble  and  faint  support  to  the  doctrine  of 


600  FORENSIC. 

constitutional  morality  because  I  suppose  you  to  be  against  it,  but  for 
quite  a  different  reason.  I  know  very  well  that  I  am  not  addressing 
men  who  claim  that  their  own  resentments  or  their  own  interests  are 
a  higher  law  than  the  Constitution  they  have  sworn  to  support,  or  a 
better  rule  of  action  than  the  law  of  God,  which  commands  them  to 
keep  their  oaths. 

Let  us  see  whether  the  measures  passed  and  proposed  against  the 
Territory  of  Utah  and  its  people  are  or  are  not  open  to  objection  on 
the  score  of  immorality. 

The  constitutionality  of  the  act  of  March  22,  1882,  has  been  much 
and  seriously  questioned  as  an  invasion  of  religious  freedom.  That  is 
not  my  point.  A  mere  sin  against  God,  not  affecting  the  relations  of 
man  to  his  fellow-man,  false  worship,  heterodox  belief,  erroneous 
teaching,  bad  systems  of  ecclesiastical  discipline  :  these  are  placed  by 
our  Constitution  beyond  the  reach  of  human  legislation.  But  any 
overt  act,  detrimental  to  society  in  general,  or  injurious  to  the  public, 
may  be  forbidden  by  the  State,  and  the  offender  can  not  justify  him 
self  by  showing  that  it  is  right  according  to  his  interpretation  of  the 
divine  will.  A  Jew  believes  it  his  religious  duty  to  take  the  widow 
of  his  deceased  brother  and  raise  up  children  by  her,  though  he  has 
a  wife  and  family  of  his  own ;  but  that  is  adultery  by  the  law  of  the 
land,  and  he  can  not  nullify  the  law  by  pleading  the  revelation  to 
Moses.  A  Seventh-day  Baptist  may  be  compelled  for  the  temporal 
convenience  of  others  to  keep  Sunday  as  a  day  of  rest,  though  his  con 
science  assures  him  that  Saturday  is  the  Sabbath  of  his  God.  One 
who  has  no  faith  at  all  is  protected  as  well  as  one  whose  faith  is  wrong, 
but  if  the  infidel  insults  or  annoys  his  fellow-citizens,  by  uttering  his 
loose  blasphemies  at  improper  times  and  places,  the  law  may  check 
him  with  a  penalty.  It  is  sometimes  difficult  to  see  with  certainty 
whether  a  particular  act  falls  on  one  side  or  another  of  the  line  which 
divides  the  domain  of  conscience  from  that  of  the  secular  ruler.  In 
doubtful  cases,  the  civil  authorities  have  the  right  of  decision,  or,  as 
Judge  Gibson  expressed  it,  the  courts  have  the  last  guess. 

My  clients,  or  at  least  the  leading  teachers  and  jurists  among  them, 
are  unshaken  in  the  belief  that  marriage,  being  ordained  of  God  and 
a  sacrament  of  the  Church,  can  not  be  rightfully  interfered  with  by 
the  State.  For  the  practical  purposes  of  the  present  case  it  does  not 
matter  whether  they  are  right  or  wrong  about  that. 

Conceding  the  authority  of  the  State,  the  question  arises,  who  is 
the  State  ?  "Where  is  the  civil  power  to  control  them  vested  ? 

They  assert  that  this  power  resides  in  their  own  government,  and 
can  be  exercised  only  by  their  own  legislature  ;  that  in  this,  as  in  all 
things  of  purely  local  concern,  they  are  their  own  masters,  with  a  per 
fect  right  to  govern  themselves.  Therefore  they  hold  that  the  forcible 
interference  of  Congress  in  such  affairs,  whether  it  be  or  be  not  an  in- 


FORENSIC.  601 

vasion  of  their  religious  freedom,  is  beyond  all  doubt  a  -plain  and  pal 
pable  infraction  of  their  civil  liberties. 

The  opposing  theory,  carried  out  to  its  logical  consequences,  is  that 
they  are  not  a  free  community,  but  a  body  of  mere  slaves,  subject  in 
all  matters  of  every  kind  to  the  will  of  Congress — a  body  in  which 
they  have  no  representation,  and  composed  of  strangers,  perhaps  of 
enemies,  who  will  take  pleasure  and  give  pleasure  to  their  constitu 
ents  by  the  most  injurious  legislation  they  can  invent  against  the 
people  who  are  subject  to  it.  The  underlying  question  is,  therefore, 
that  of  jurisdiction,  which  you  are  obliged  to  determine  before  you 
can  know  whether  you  are  passing  a  law,  or  merely  disgracing  the  stat 
ute-book  by  an  act  of  gross  usurpation.  If  it  be  ultra  vires,  it  is  not 
only  a  violation  of  constitutional  morality,  but  as  void  as  an  ordinance 
on  the  same  subject  passed  by  the  directors  of  a  private  corporation. 

Perhaps  it  may  be  worth  while  to  inquire  for  a  moment  how  this 
conflict  of  jurisdiction  came  about.  It  started  thus  :  The  Mormons, 
being  successively  driven  out  of  Ohio,  Missouri,  and  Illinois,  took 
their  religion  with  them  to  the  wilderness  of  Utah.  To  us  it  is  false. 
But  that  is  truth  to  them  which  they  believe  to  be  true.  Their  faith 
in  their  own  creed  is  proved  by  their  works,  and  sealed  with  more  suf 
fering  than  any  other  sect  in  modern  times  has  ever  endured.  It  is 
all  nonsense  to  doubt  their  sincerity.  Nobody  does  doubt  it. 

It  is  a  part  of  this  religion  that  plural  marriages  are  in  some  cases 
righteous  and  proper.  Their  Church  teaches  that,  and  they  made  no 
laws  to  punish  its  members  for  acting  according  to  their  belief.  This 
simple  forbearance  of  their  government  to  fine  and  imprison  people 
for  doing  what  they  all  believed  to  be  right  is  the  head  and  front  of 
their  offending.  How  could  any  sane  person  expect  them  to  do  any 
thing  else  ?  They  had  the  misfortune  to  believe,  implicitly  and  almost 
unanimously,  as  an  article  of  religious  faith,  that  polygamy  was  not 
wrong.  How  could  they  make  it  a  penal  offense  without  subverting 
their  civil  institutions  ?  You  might  as  well  ask  a  people  to  punish 
one  another  for  their  complexion,  the  color  of  their  hair,  or  the  shape 
of  their  bodies,  common  to  and  admired  by  all.  They  simply  could 
not  either  make  or  execute  such  a  law.  As  an  organized  community 
they  must  have  perished  if  they  had  undertaken  it. 

Because  they  would  not  and  could  not  take  this  destructive  course, 
they  are  supposed  to  be  guilty  of  such  heinous  wickedness  that  they 
are  hardly  fit  to  live  on  the  same  planet  with  us. 

The  law  which  they  could  not  make  for  themselves,  because  their 
judgment  condemned  it  as  unjust  and  impolitic,  is  now  to  be  made 
for  them  and  thrust  down  their  throats  "against  the  stomach  of  their 
sense."  Their  government  refused  to  commit  suicide ;  therefore  it 
ought  to  be  murdered. 

The  question  whether  you  can  constitutionally  legislate  on  this 


602  FORENSIC. 

subject  involves  the  entire  right  of  self-government.  It  covers  the 
whole  ground  between  freedom  and  slavery.  The  formation  of  the 
family,  marriage  and  divorce,  the  legitimacy  of  children,  the  succes 
sion  to  property,  these  are  the  most  purely  private,  domestic,  and 
local  of  all  subjects  to  which  human  legislation  can  apply ;  and  if 
your  right  to  control  a  people  in  these  respects  be  conceded,  there  is 
nothing  else  on  which  your  jurisdiction  can  be  denied.  You  can 
make  your  laws  good  or  bad,  as  you  please,  and  they  are  as  binding 
one  way  as  the  other.  That  they  will  be  very  bad  is  not  an  idle  ap 
prehension  ;  for  you  will  be  impelled  by  strong  motives  to  legislate 
without  the  smallest  regard  for  the  rights,  interests,  wishes,  or  feel 
ings  of  the  people  concerned. 

If  you  can  forbid  polygamy  where  it  is  believed  to  be  right,  you 
can  force  it  on  a  community  that  holds  it  in  detestation.  You  can 
divorce  every  man  from  his  wife  or  wives,  whether  he  has  one  or 
many.  You  can  abolish  the  institution  of  marriage  entirely,  strip  all 
men  and  all  women  of  their  conjugal  rights,  bastardize  all  their  children, 
and  bring  on  the  reign  of  universal  free  love.  If  you  can  imprison, 
disfranchise,  and  disgrace  a  man  for  marrying  the  woman  he  lives 
with,  there  is  no  reason  (I  mean  no  legal  reason)  why  you  should  not 
patronize  adultery  and  honor  the  brothel. 

This  omnipotent  power  of  Congress,  which  makes  and  breaks  the 
matrimonial  contract,  extends  to  all  the  relations  of  private  life. 
That  of  parent  and  child  necessarily  goes  with  it ;  ancestor  and  heir 
follows,  of  course,  and,  by  parity  of  reasoning,  master  and  servant 
are  included.  Then  why  not  debtor  and  creditor,  landlord  and  ten 
ant,  vendor  and  vendee  ?  What  shall  hinder  you  to  take  away  the 
testamentary  power,  forbid  administration  of  a  decedent's  estate,  regu 
late  all  business,  and  stop  all  work  except  what  you  and  your  con 
stituents  approve  ? 

To  carry  into  effect  the  laws  already  passed,  it  is  necessary  and 
proper  that  you  should  have  a  police-force  composed  of  spies  and  dela 
tors,  who  will  thrust  themselves  into  the  kitchens  and  bed-chambers 
of  all  families,  employ  eavesdroppers  who  will  watch  them  at  key 
holes  and  windows,  or,  in  default  of  that,  change  the  rules  of  evidence 
(as  a  committee  of  the  Senate  has  actually  proposed)  and  compel  the 
lawful  husband  and  wife  to  testify  against  one  another  in  contemptu 
ous  defiance  of  the  great  principles  which  protect  the  sanctities  of  the 
family,  and  lie  at  the  basis  of  civil  society. 

It  is  perfectly  clear  that  if  your  claim  to  exclusive  jurisdiction  be 
established,  so  as  to  comprehend  the  power  to  punish  men  and  women 
for  making  family  arrangements  which  you  disapprove,  you  have  au 
thority  to  define  all  offenses  :  anything  is  a  crime  which  you  choose  to 
call  so,  and  everything  is  innocent  which  you  think  proper  to  tolerate. 
You  may  therefore  make  an  entire  criminal  code  for  them,  and  you 


FORENSIC.  603 

may  make  it  as  pernicious  as  you  choose.  It  need  not  be  "  a  terror  to 
evil-doers,  or  a  praise  unto  them  that  do  well,"  if  you  wish  to  have  it 
otherwise.  The  virtue  may  be  visited  with  penalties ;  justice,  chas 
tity,  temperance,  and  truth  may  be  sent  to  the  penitentiary ;  swin 
dling  and  perjury  may  be  legalized.  Taking  the  exceptional  jurispru 
dence  of  Sparta  as  a  model,  larceny  may  become  a  merit ;  or,  following 
a  more  recent  precedent  in  the  Congressional  government  -of  the 
South,  you  can  maintain  the  worst  men  in  the  highest  offices,  throw 
the  reins  loose  on  the  neck  of  rapacity,  make  leprous  fraud  adored — 

"  Place  thieves, 

And  give  them  title,  knee,  and  approbation, 
With  Senators  on  the  bench." 

If  you  have  not  only  the  right,  but  the  exclusive  right,  to  do  this, 
it  must  be  acknowledged  that  there  is  no  use  for  a  local  government ; 
it  is  merely  in  your  way,  and  accordingly  you  have  already  begun  to 
abolish  it.  Agents  appointed  under  your  laws  have  gone  down  with 
instructions  to  take  possession  of  all  the  polling-places  and  registra 
tion-offices,  and  the  people  were  expressly  forbidden  to  vote  except  by 
their  permission  and  under  their  supervision.  They  construed  your 
law  as  a  bill  of  pains  and  penalties  which  attainted  the  whole  popula 
tion,  and  they  ordered  every  voter  to  be  disfranchised  who  would  not 
take  an  expurgatory  oath  that  covered  his  whole  life.  Another  set  of 
agents  assert  that  they  have  your  direction  to  seize  all  the  territorial 
offices,  and  distribute  them  as  booty  among  the  enemies  of  the  peo 
ple.  One  more  step,  an  easy  and  a  short  one,  you  are  much  urged 
to  take,  and  that  is  to  send  a  commission  upon  them  with  power, 
not  only  to  supervise  them  when  they  vote,  and  deprive  whom  they 
please  of  the  ballot,  but  to  make  and  execute  all  laws  on  every  subject, 
and  to  govern  them  generally  as  an  overseer  might  govern  a  plantation 
of  slaves. 

Of  course  it  is  possible  that  the  Territory  might  be  controlled 
justly,  wisely,  and  moderately  by  the  hirelings  of  the  Federal  Govern 
ment.  But  the  chances  are  a  thousand  to  one  that  they  would  act 
as  persons  in  that  situation  have  always  acted  :  oppress  and  plunder 
their  subjects,  steal  their  money,  and  tax  their  industry  to  death. 
This  might  provoke  the  resistance  of  the  most  patient  people,  and  the 
first  symptom  of  disorder  would  furnish  a  legal  excuse  for  cutting 
them  up  root  and  branch.  Arbitrary  rulers  pardon  nothing  to  the 
spirit  of  liberty. 

Has  Congress  this  exclusive  power  of  legislation  for  a  Territory  ? 
Or  does  it  belong  to  the  people  of  the  Territory  and  to  the  representa 
tives  whom  they  have  chosen  to  intrust  with  it  ?  I  maintain  that  the 
right  of  local  self-government  is  founded  on  acknowledged  principles 
of  public  law ;  it  existed  before  this  Government  was  framed,  and  the 


604:  FORENSIC. 

Constitution  reserves  it  to  the  people  of  the  Territories  as  distinctly 
as  to  the  States. 

Look  at  the  practical  case  :  citizens  of  a  State  or  of  several  States 
leave  the  place  of  their  residence  and  go  out  with  their  families  to 
colonize  themselves  on  the  public  domain  of  the  Union,  beyond  the 
limits  of  any  State.  They  buy  the  land  and  settle  upon  it  with  the 
consent  of  the  General  Government,  to  which  it  belonged,  whereby 
they  became  a  separate  body  detached  from  all  others.  Have  they 
ceased  to  be  free  ?  Did  they  leave  their  liberties  behind  them  ?  Have 
they  not  a  natural  right  to  regulate  their  daily  lives  and  adjust  their 
private  relations  by  such  laws  as  they  think  will  be  most  suitable  to 
their  condition  and  best  promote  their  interest  ?  Yes,  they  have,  un 
less  they  are  slaves  ;  for.  the  freedom  of  the  community  results  neces 
sarily  from  the  freedom  of  the  individuals  that  compose  it. 

I  do  not  assert  that  they  can  govern  themselves  in  a  way  forbidden  by 
the  Federal  Constitution,  or  by  an  act  of  Congress  passed  in  pursuance 
thereof.  The  people  of  a  State  can  not  do  that.  What  I  do  assert  is 
thafc  Congress  can  not  legislate  for  a  Territory  on  any  subject-matter 
on  which  it  can  not  legislate  for  a  State.  This  furnishes  an  easy  and 
infallible  test  of  constitutionality.  If  Congress  may  regulate  marriage 
and  divorce  in  a  State  it  may  do  so  in  a  Territory ;  if  not,  not. 

It  is  true,  also,  that  the  General  Government  may  give  the  colo 
nists  a  charter,  and  call  it  an  act  of  incorporation  or  an  organic  law. 
This  was  what  the  imperial  government  of  England  did  for  the  several 
colonies  that  settled  on  its  lands  in  America.  But  the  charter  must 
be  a  free  one.  If  it  abridges  the  liberty  of  the  people  to  do  as  they 
please  about  matters  which  concern  nobody  else,  it  is  void.  Even  if 
the  colonists  would  consent,  for  a  consideration,  to  accept  an  organic 
law  imposing  a  restraint  upon  their  right  of  self-government,  they 
could  throw  it  off  as  a  nullity ;  for  the  birth-right  of  a  freeman  is 
inalienable.  I  need  not  say  that  foreigners  naturalized  are  on  a  level 
with  native  citizens. 

As  Congress  can  not  give,  so  it  can  not  withhold,  the  blessing  of 
popular  government  in  a  Territory.  But  the  legislation  now  proposed, 
in  addition  to  that  already  passed,  would  blacken  the  character  of  the 
Federal  Government  with  an  act  of  cruel  perfidy.  The  charter  you 
gave  to  Utah  was  in  full  accordance  with  the  broad  principles  of 
American  liberty.  You  organized  for  them  a  free  territorial  govern 
ment,  put  into  their  hands  all  the  machinery  that  was  needed  to  carry 
it  on  ;  the  ballot  to  be  used  under  regulations  of  their  own  :  officers 
chosen  by  themselves  to  administer  their  local  affairs,  collect  the  taxes 
and  take  charge  of  their  money  ;  and  a  legislature  representing  them, 
responsible  to  them,  clothed  with  exclusive  power  to  make  their  laws, 
and  to  alter  them  from  time  to  time  as  experience  might  show  to  be 
just  and  expedient.  Gilding  your  invitation  with  this  offer  of  free 


FORENSIC.  605 

government,  you  attracted  people  from  every  State,  and  from  all  parts 
of  the  civilized  world,  whose  industry  scattered  plenty  over  that  barren 
region,  and  made  the  desert  bloom  like  a  garden.  Now  you  are  urged 
to  break  treacherously  in  upon  their  security — supersede  the  laws  which 
they  approve,  by  others  which  are  odious  to  them  ;  make  their  legisla 
tion  a  mockery,  by  declaring  that  yours  is  exclusive ;  drive  out  the 
officers  in  whom  they  confide,  and  fill  their  places  with  raging  and 
rapacious  enemies  ;  take  away  their  right  of  suffrage,  and  with  it  all 
chance  of  peaceable  redress  ;  break  down  the  whole  structure  of  the 
territorial  government,  under  which  you  promised  to  give  them  a  per 
manent  shelter.  Would  not  this  be  a  case  of  Punic  faith  ?  Apart  from 
all  question  of  constitutional  morality,  the  conduct  of  the  wrecker  who 
burns  false  lights  to  mislead  the  vessel  he  wishes  to  plunder  does  not 
seem  to  me  more  perfidious.  If  it  has  the  same  appearance  to  you,  it 
will  be  swept  away  with  the  scorn  it  deserves.  But  let  us  keep  to  the 
point  of  law. 

The  relations  of  the  colonies  to  Great  Britain  were  precisely  the 
same  as  those  which  exist  between  what  we  call  the  Territories  and 
the  General  Government  of  the  United  States.  By  the  public  law  of 
the  world  the  colonies  had  the  right  of  local  self-government.  The 
imperial  Parliament,  omnipotent  at  home,  was  utterly  without  power 
to  legislate  on  the  domestic  affairs  of  any  community  settled  upon 
crown  lands  sold  or  given  to  them  on  this  side  of  the  Atlantic.  This 
freedom  was  not  only  asserted  by  the  colonists,  but  for  more  than  a 
century  they  were  allowed  to  enjoy  it  without  disturbance.  The  ex- 
clusiveness  of  their  right  to  legislate  for  themselves,  the  extent  to 
which  it  was  exercised,  and  the  range  of  subjects  it  embraced,  are 
known  to  all  who  have  read  their  history. 

In  those  days  the  doctrine  of  perfect  religious  freedom  was  un 
known  ;  it  was  regarded  as  a  proper  function  of  the  civil  authority  to 
punish  whatever  it  deemed  false  theology.  This  power,  like  others, 
belonged  to  the  colonies.  When  heretics,  proscribed  in  England  by 
the  laws  in  force  there,  fled  beyond  the  sea  and  organized  a  colony, 
they  not  only  escaped  persecution,  but  acquired  the  right  to  persecute 
others.  By  some  of  the  colonies  this  power  was  much  abused ;  but 
the  Parliament  could  not  interfere  to  prevent  it.  The  king  sent  Lord 
Baltimore  and  a  large  body  of  his  retainers  to  Virginia  with  a  grant 
of  land  and  a  letter  to  the  colonial  authorities  requesting  that  he 
might  not  be  molested  on  account  of  his  religion.  The  colonial  legis 
lature  resented  this  as  an  interference  with  their  established  right  of 
self-government,  and  replied  to  the  king  that  if  Lord  Baltimore  prac 
ticed  the  Catholic  religion  within  their  territory  he  must  submit  to 
such  penalties  as  they  chose  to  inflict.  The  royal  mandate  was  with 
drawn  ;  Lord  Baltimore  was  moved  above  the  Potomac,  where  he  and 
his  friends  erected  a  colony  of  their  own,  and  that  colony  excited  the 


606  FORENSIC. 

disgust  of  Parliament  and  the  indignation  of  Virginia  by  tolerating  all 
kinds  of  religion. 

I  mention  these  things  to  show  that  self-government  in  its  broad 
est  sense  was  claimed  by  and  conceded  to  the  colonies.  Then  home 
rule  extended  to  matters  of  religion,  as  it  did  to  all  other  affairs  within 
the  scope  of  the  civil  authority.  Here  and  now  the  conflict  between 
Federal  power  and  the  rights  of  a  State  or  Territory  could  not  take 
that  shape,  inasmuch  as  legislation  on  such  subjects  is  excepted  for 
ever  out  of  the  power  of  all  government. 

But  suppose  by  a  stretch  of  your  imagination  that  Parliament,  led 
by  some  ultra  Tory,  had  undertaken  to  prescribe  what  family  relations 
should  exist  in  a  particular  colony,  provide  the  severest  penalties  to 
enforce  the  regulations  by  penalties  in  direct  conflict  with  the  popular 
sense  of  duty  and  against  pre-existing  laws,  customs,  and  opinions. 
What  would  history  have  said  about  such  a  Parliament  ?  But  sup 
pose,  further,  that  the  same  Parliament,  to  remove  impediments  from 
the  way  of  its  act,  broke  down  all  the  free  institutions  of  the  colony, 
forbade  trial  by  jury  unless  the  jury  was  packed,  disfranchised  the 
legal  voters,  prevented  elections  that  were  not  supervised  by  agents  of 
the  ministry,  ordered  the  expulsion  of  all  officers  already  chosen,  and 
replaced  them  by  avowed  enemies,  with  power  to  tax  and  cheat  them 
at  will.  Could  such  measures  as  these  against  any  of  the  colonies  have 
found  one  unprejudiced  and  honest  defender  in  the  world  ? 

In  fact  and  in  truth  nothing  nearly  so  atrocious  was  proposed  or 
attempted.  The  stamp  act,  the  tax  upon  tea,  the  prohibition  of  cer 
tain  manufactures,  the  Boston  port  bill,  and  other  restrictions  upon 
trade,  were  trifles  in  comparison.  But  they  reached  the  vitals  of  civil 
liberty  simply  because  they  denied  the  principle  of  perfect  home  rule 
in  the  colonies  ;  they  asserted  a  jurisdiction  in  Parliament  which  was 
inconsistent  with  the  right  of  the  colonies  to  govern  themselves  in 
matters  which  affected  their  own  rights,  interests,  and  feelings.  There 
fore  those  measures  kindled  a  blaze  of  indignation  in  every  colony. 
All  true  men  in  America  pledged  their  lives,  their  fortunes,  and  their 
sacred  honor  to  "throw  off  the  shackles  of  usurped  control,"  and  in 
the  outcome  they  did  "hew  them  link  from  link."  The  friends  of 
liberty  in  England  sided  with  patriots  here.  Burke  and  Fox  made 
the  defensive  sophistry  of  ministers  contemptible ;  Chatham  declared 
that  if  Americans  submitted  they  would  become  slaves  themselves, 
and  fit  instruments  to  enslave  others.  "I  rejoice,"  said  he,  "that 
America  resisted." 

If  there  be  anything  fixed,  established,  and  undeniable  as  a  propo 
sition  of  public  law,  it  is  the  natural  right  of  a  free  community  like 
Utah  to  govern  itself.  It  is  impossible  for  a  member  of  Congress  not 
to  know  that  the  success  of  our  Ke volution  was  an  acknowledged  tri 
umph  of  that  principle.  English  and  American  supporters  of  Lord 


FORENSIC.  607 

North's  ministry  may  have  been  conscientious  in  their  opposition  to 
this  doctrine,  and  upright  statesmen  may  dissent  from  it  now  ;  but  it 
is  not  easy  to  see  how  any  man  can  believe  in  the  rightfulness  of  these 
aggressions  upon  Utah,  except  for  reasons  which  would  have  made 
him  a  Tory  if  he  had  lived  in  the  time  of  the  Kevolution. 

I  have  said  that  these  people  have  a  natural  right  to  govern  them 
selves  ;  but  I  admit  that  this  natural  right  may  be  abridged  by  funda 
mental  arrangement.  That  is  to  say,  the  right  of  legislation  for  a 
Territory  upon  some  subjects  or  all  may  be  taken  away  from  the  people 
and  vested  in  Congress  by  the  Federal  Constitution.  "Would  it 'not  be 
a  shocking  surprise  to  discover  in  that  instrument  a  provision  so  hos 
tile  to  the  liberty  for  which  they  had  fought  and  toiled  for  seven 
years  ?  You  will  find  upon  looking  at  the  Constitution  that  it  is  not 
there. 

But  the  unlimited  sway  which  the  power  of  exclusive  legislation 
would  give  has,  at  different  times  in  our  history,  been  much  desired  by 
members  of  Congress  and  by  friends  of  theirs  who  cast  their  covetous 
eyes  on  offices  and  property  which  did  not  belong  to  them.  Before 
the  industry  of  Utah  had  made  it  rich  enough  to  be  worth  robbing, 
the  notion  was  started  that  if  the  Southern  States  could  be  reduced  to 
the  condition  of  Territories,  the  absolute  domiifation  of  Congress  over 
them  through  the  instrumentality  of  carpet-baggers  and  bayonets 
would  become  constitutional.  Therefore  the  first  step  was  to  declare 
that  the  State  governments  did  not  legally  exist ;  the  States  were  said 
to  be  Territories,  and,  as  a  consequence,  supposed  to  be  at  the  mercy  of 
Congress. 

Mr.  Thaddeus  Stevens,  the  great  leader  and  driver  of  that  day, 
who  ruled  Congress  with  a  sway  that  was  boundless,  thought  it  best  in 
the  beginning  to  assure  his  followers  that  the  Constitution  had  given 
to  Congress  this  power  over  the  Territories.  To  prove  it  he  showed 
them  the  following  provision  : 

"  The  Congress  shall  have  power  to  dispose  of  and  make  all  need 
ful  rules  and  regulations  respecting  the  territory  and  other  property  of 
the  United  States,  and  nothing  in  this  Constitution  shall  be  so  con 
strued  as  to  prejudice  any  claims  of  the  United  States  or  of  any  par 
ticular  State." 

That  this  expressed  nothing,  and  meant  nothing,  and  granted 
nothing  to  Congress,  except  the  power  to  exercise  for  the  General 
Government  its  purely  proprietary  rights  over  the  land  and  goods  it 
possessed,  whether  lying  within  the  States  or  outside  of  them,  was  so 
perfectly  manifest  that  Mr.  Stevens  became  disgusted  with  his  own 
argument ;  he  freely  expressed  his  profound  contempt  for  it,  and  for 
all  who  pretended  to  believe  it.  Having  drawn  them  into  it  by  his 
glozing  speech,  his  fierce  invective  lashed  them  out  again  ;  and  he  so 
"chastised  them  with  the  valor  of  his  tongue,"  that  they  feared  to 


608  FORENSIC. 

speak  of  scruples  any  more.  He  did  not,  because  he  could  not,  fur 
nish,  them  any  other  pretense  to  stand  upon  ;  and  he  told  them  plainly 
and  frankly  that  he  would  not  stultify  himself  by  professing  to  think 
his  measure  constitutional.  "This,"  said  he,  " is  legislation  outside 
of  the  Constitution."  It  was  passed,  and  Congress  inaugurated  the 
reign  of  the  thief  and  the  kidnapper  by  an  acknowledged  usurpation. 

The  outrages  upon  liberty  in  Utah  are  not  grounded  on  the  theory 
which  Mr.  Stevens  exploded.  It  is  not  now  pretended  that  the  forci 
ble  rupture  of  private  relations,  seizure  of  ballot-boxes,  disfranchise- 
ment  of  voters,  expulsion  of  territorial  officers,  are  needful  rules  and 
regulations  for  the  disposal  or  use  of  Federal  property.  "  The  Ed 
munds'  bill "  (which  could  not  have  been  drawn  by  the  Senator  of 
that  name)  assumes  and  expresses  the  assumption,  in  unequivocal 
words,  that  the  United  /States  have  exclusive  jurisdiction  in  a  Terri 
tory.  This  is  much  worse  than  the  other ;  it  is  not  merely  a  false 
construction  of  the  Constitution  :  it  is  an  attempt  to  put  into  the 
Constitution  what  is  not  there. 

When  a  man  who  knows  anything  about  American  institutions 
asserts  that  the  United  States  have  exclusive  jurisdiction  in  a  particu 
lar  place,  he  means  to  say  that  the  Constitution  has  given  to  the  Fed 
eral  Legislature  and  Executive  the  sole  authority  to  make  and  enforce 
all  laws  in  all  cases  for  and  against  all  persons  in  that  place.  There 
are  places  in  which  this  omnipotent  and  exclusive  power  is  given  to 
Congress,  but  to  say  that  it  extends  to  Utah  or  any  other  Territory  is 
simply  false.  Look  at  the  Constitution  and  see  for  yourselves.  Among 
the  enumerated  powers  of  Congress  is  this — 

"  To  exercise  exclusive  legislation,  in  all  cases  whatsoever,  over  such 
district  (not  exceeding  ten  miles  square)  as  may  by  cession  of  particu 
lar  States,  and  the  acceptance  of  Congress,  become  the  seat  of  Govern 
ment  of  the  United  States,  and  to  exercise  like  authority  over  all  places 
purchased  by  the  consent  of  the  Legislature  of  the  State  in  which  the 
same  shall  be  for  the  erection  of  forts,  magazines,  arsenals,  dock-yards, 
and  other  needful  buildings." 

There  is  the  only  grant  of  exclusive  jurisdiction  that  can  be  found 
in  the  instrument.  It  is  plainly  intended  to  and  does  cover  the  Dis 
trict  of  Columbia.  The  authority  is  granted  with  equal  clearness  over 
the  places  occupied  by  the  forts,  arsenals,  magazines,  and  dock-yards  ; 
but  does  it  say  that  it  may  be  exercised  in  the  Territories  ?  No  ;  "  it 
is  not  so  nominated  in  the  bond." 

This  is  no  point  of  interpretation,  strict  or  loose.  Whether  the 
Constitution  grants  or  does  not  grant  the  power  of  exclusive  legisla 
tion  over  the  Territories  to  Congress  is  a  question  of  fact  to  be  deter 
mined  by  mere  inspection.  The  ocular  proof  that  no  such  grant  is 
there  can  not  be  overcome,  or  in  the  slightest  degree  weakened,  by  any 


FORENSIC.  609 

kind  of  construction,  however  smart ;  much  less  can  the  omission  be 
supplied  by  a  bald  interpolation. 

If  the  power  is  not  given  to  Congress  in  and  by  the  Constitution, 
then  Congress  has  it  not  at  all.  This  is  a  Government  of  enumerated 
powers.  It  is  part  of  the  instrument  itself  that  powers  not  granted 
are  reserved. 

Nobody  has  ever  been  mad  enough  to  say  that  such  laws  as  these 
against  Utah  could  be  enforced  against  a  State  ?  Why  ?  Because 
the  Constitution  gives  Congress  no  jurisdiction  or  authority  to  pass 
them.  But  it  does  give  exactly  the  same  power  of  legislation  over  a 
State  as  over  a  Territory.  The  right  of  freemen  to  be  exempt  from 
the  scourge  of  the  central  power  is,  therefore,  as  well  secured  in  one 
as  in  the  other. 

The  powers  not  granted  to  the  United  States  are  reserved  to  the 
States  respectively,  or  to  the  people,  and  the  enumeration  of  particular 
rights  expressly  retained  does  not  disparage  or  deny  others  on  which 
the  instrument  is  silent.  This  being  the  express  rule,  it  will  hardly 
be  asserted  that  the  power  now  in  question  is  not  reserved.  To  whom 
is  it  reserved  ?  To  the  States  respectively  where  there  are  States,  or, 
in  a  Territory  where  no  State  government  exists,  there  it  is  reserved 
to  the  people.  The  reservation  is  as  clear  an  d  express  in  one  case  as 
in  the  other.  In  both,  the  power  of  local  self-government  rests  and 
remains  where  it  was  placed  by  God  and  Nature,  since  it  was  not  re 
moved  by  the  Constitution  and  lodged  elsewhere. 

The  General  Government  is  a  political  corporation;  with  powers 
defined  in  its  charter.  Outside  of  the  charter  all  its  acts  are  void,  as 
would  be  the  similar  acts  of  any  other  corporation.  Suppose  the  di 
rectors  of  the  Illinois  Central  Railroad  Company,  out  of  their  pious 
regard  for  the  moral  and  spiritual  welfare  of  Chicago,  would  pass  a 
law  to  reform  the  licentiousness,  gambling,  drunkenness,  and  other 
vices  there  supposed  to  be  practiced,  imposing  penalties  of  fines,  im 
prisonment,  and  disfranchisement  upon  all  prostitutes  and  keepers  of 
disorderly  houses,  would  anybody  be  bound  by  their  statutes  ?  Yet 
their  power  to  pass  them  and  enforce  them  would  be  just  as  good  as 
yours  to  do  the  same  thing  either  for  Illinois  or  Utah. 

There  are  other  objections  to  this  legislation  against  Utah.  It  is 
not  only  unconstitutional,  but  ^^'constitutional.  It  assumes  a 
power  not  granted,  and  then  commands  it  to  be  enforced  by  means 
flatly  prohibited.  Let  me  call  your  special  attention  to  some  of  them. 

I.  Trial  by  jury  means  by  a  jury  of  the  country,  the  peers  of  the 
party,  selected  impartially  from  the  general  population,  so  as  to  rep 
resent  a  fair  average  of  the  public  understanding  and  moral  sense. 
That  is  the  kind  of  jury  that  every  man  is  entitled  to  have  who  pleads 
not  guilty,  and  puts  himself  on  God  and  the  country  for  trial.  That 
is  the  meaning  of  the  word  jury  as  used  in  the  decrees  of  Alfred,  the 

39 


610  FORENSIC. 

statutes  of  Edward  the  Confessor,  Magna  Charta,  the  Petition  of 
Eights,  the  Bill  of  Eights,  and  the  American  Constitution.  In  that 
sense  it  is  used  by  all  English-speaking  peoples,  and  with  that  sense 
attached  to  it  the  institution  has  been  adopted  by  other  nations.  The 
right  of  trial  by  jury  is  withheld  by  the  Edmunds'  law  or  given  in  a 
mutilated  form,  which  makes  it  hardly  better  than  a  military  commis 
sion,  "  organized  to  convict." 

The  body  of  the  population  believe,  as  matter  of  moral  and  relig 
ious  sentiment,  that  polygamy  is  at  least  so  far  right  that  a  law  which 
makes  it  a  penal  offense  is  unjust  and  impolitic.  The  antipopular 
faction,  composing  about  one  twentieth,  justify  their  machinations 
against  the  others  by  expressing  a  most  violent  antipathy  to  that  par 
ticular  feature  of  the  prevailing  doctrine  which  permits  of  plural 
marriages. 

That  is  their  religion,  their  politics,  their  business,  their  law  ;  they 
carry  it  into  everything  ;  to  them  it  is  piety  and  patriotism  ;  it  stands 
in  the  place  of  faith,  hope,  and  charity  ;  from  among  them,  hardly 
numerous  enough  to  be  called  a  minority,  the  act  of  Congress  arranges 
that  the  jury  shall  be  exclusively  made  up  ;  the  country,  the  body  of 
the  people,  is  not  to  be  represented  at  all. 

A  juror  may  be  questioned  on  his  oath  whether  "  he  believes  it 
right  for  a  man  to  have  more  than  one  living  and  undivorced  wife  at 
the  same  time,  or  to  live  in  the  practice  of  cohabiting  with  more 
than  one  woman."  If  he  refuses  to  answer,  or  answers  in  the 
affirmative,  he  is  conclusively  presumed  to  be  one  of  the  people,  and 
must  be  rejected  ;  but  if  he  replies  "  No,"  he  has  spoken  the  watch 
word  of  the  inimical  faction,  and  he  is  admitted,  because  his  ascer 
tained  hostility  to  the  party  accused,  and  all  his  class,  may  be  relied 
upon  as  an  element  of  his  verdict. 

All  officers  concerned  in  a  trial  under  this  law  are  required  to  sift 
out  the  panel,  and  see  that  no  one  gets  on  who  will  not  jump  at  every 
chance  of  conviction.  The  summoning-clerk  must  be  what  is  called 
in  Philadelphia  a  "  jury-fixer  "  ;  your  judges  must  bring  themselves 
within  the  old  statute  against  "  evil  procurers  of  dozens,"  that  being 
the  designation  of  certain  persons  who  made  it  a  business  and  a  trade 
to  find  twelve  men  predetermined  on  a  verdict  desired  by  the  party 
who  employed  them. 

An  attempt  has  been  made  and  will  be  again  to  justify  this  unreal 
mockery  of  a  trial  by  saying  that  unless  you  pack  the  juries  you  can 
not  get  convictions.  As  matter  of  fact  this  may  be  true.  Generally 
it  is  vain  to  hope  that  a  jury  of  the  country,  representing  the  popular 
feeling  and  sense  of  right,  will  carry  out  to  its  bitter  end  a  law  re 
garded  by  the  mass  of  the  people,  whether  rightly  or  wrongly,  as  un 
just,  oppressive,  and  cruel.  That  is  why  we  have  juries.  For  that 
reason  trial  by  jury  is  the  great  safeguard  of  civil  liberty.  To  make 


FORENSIC.  611 

them  efficient  to  that  end  they  are  judges  of  the  law  as  well  as  the 
facts,  and  their  verdict  on  both  is  conclusive.  By  the  exercise  of  this 
power  they  have  nullified  tyrannical  statutes  many  times.  You  can 
not  but  remember  the  notable  case  of  Woodfall,  when  the  life  of  Eng 
lish  liberty  was  saved  at  its  last  gasp  by  the  stubborn  refusal  of  the 
jury  to  find  a  verdict  according  to  the  law  of  libel,  as  laid  down  by 
Lord  Mansfield.  The  sentiments  of  the  people  were  not  consulted 
when  you  made  this  law,  but  you  can  not  evade  their  judgment  upon 
it  when  it  comes  to  be  executed.  They  were  not  represented  in  Con 
gress,  but  they  must  be  represented  on  the  jury.  The  effort  now 
made  to  substitute  a  packed  jury  for  a  jury  of  the  country  is  a  very 
poor  attempt  to  defeat  the  most  sacred  right  which  the  Constitution 
guarantees.  I  solemnly  trust  that  it  will  turn  out  as  impotent  as  it  is 
unauthorized. 

II.  The  promoters  of  the  law  in  question,  not  satisfied  with  try 
ing  their  victims  by  a  court  and  jury  composed  of  their  enemies,  con 
cluded  to  go  a  little  further,  and  punish  them  without  any  trial  at  all. 
The  frightful  penalty  of  disfranchisement  is  to  be  visited  upon  them 
without  conviction.     Men  were  directed  to  be  stripped  of  their  citi 
zenship,  rendered  incapable  of  voting,  expelled  from  offices  to  which 
they  had  been  legally  chosen,  and  deprived  of  all  right  to  participate 
in  the  government  they  lived  under,  for  crimes  of  which  they  were 
never  even  accused  before  any  legal  tribunal.     Commissioners  are 
appointed  to  carry  this  out,  who,  reversing  the  presumption  of  law, 
and  declaring  the  whole  population  to  be  guilty,  proceeded  to  convict 
individuals  by  a  test-oath  of  their  own  fabrication. 

The  right  to  do  such  things  as  these  does  not  depend  on  the  juris 
diction  of  Congress  over  the  Territories.  No  matter  how  exclusive 
your  power  may  be,  you  can  not  exercise  it  in  a  fashion  like  that. 
The  Supreme  Court  decided  that  the  State  of  Missouri  could  not  put 
such  a  provision  in  her  Constitution.  It  is  a  bill  of  pains  and  penal 
ties,  or  bill  of  attainder,  which  is  expressly  forbidden  by  the  Constitu 
tion.  There  is  no  legislative  body  on  this  continent  that  has  author 
ity,  by  an  arbitrary  decree,  to  deprive  freemen  of  their  civil  rights  for 
offenses  of  which  they  are  not  judicially  convicted.  It  is  a  burning 
shame  that  such  a  decree  should  be  found  among  the  acts  of  Congress. 

If  any  man  thinks  that  disfranchisement  is  not  punishment,  or 
that  the  judgment  of  an  election  officer  is  equivalent  to  a  legal  convic 
tion,  let  him  read  the  opinion  of  the  Supreme  Court  of  the  United 
States  in  Cumming's  case  (4  Wall.),  delivered  by  Judge  Field,  or  the 
clear  and  unanswerable  exposition  of  the  subject  given  by  Judge 
Strong,  Huber  vs.  Reily  (3  Persifer  Smith).  If  he  does  not  believe 
on  such  authority  and  such  reasoning,  he  would  not  believe  though 
one  rose  from  the  dead. 

III.  When  I  first  read  this  law,  I  did  not  believe  that  its  support- 


612  FORENSIC. 

ers  really  wished  it  to  operate  upon  any  but  persons  who  might  be 
legally  convicted  of  offenses  thereafter  committed.  The  words  are 
capable  of  that  construction,  and  it  is  not  fair,  if  it  can  be  avoided, 
to  suppose  that  a  legislator  intends  to  violate  the  Constitution.  But 
the  debates  show  that  I  was  mistaken  upon  the  matter  of  fact.  The 
actual  intent  was  to  make  it  ex  post  facto.  The  commissioners  so  un 
derstood  it,  and  they  were  subservient  enough  to  carry  it  out.  They 
gave  it  a  retroactive  effect,  which  reached  back  for  a  whole  generation, 
and  laid  its  punitive  lash  not  only  on  men  who  were  never  convicted, 
but  upon  men  (and  women  too)  who  could  not  be  convicted  because 
their  offenses  were  condoned,  because  they  were  protected  by  the  stat 
ute  of  limitations,  or  because  they  had  been  already  tried  and  acquitted. 
Nothing  was  a  defense  against  this  iniquitous  act,  which  suddenly, 
without  warning  or  trial,  reached  back  like  the  terrible  hind-hand  of  a 
gorilla  and  throttled  all  that  it  grasped.  An  argument  certainly  can 
not  be  necessary  to  prove  that  this  is  an  outrage  on  the  Constitution, 
as  well  as  on  the  principles  of  natural  justice. 

IV.  But  the  pains  and  penalties  of  disfranchi semen t  are  to  be  car 
ried  still  further.  By  the  laws  of  Utah  the  right  of  suffrage  belongs 
to  women  as  well  as  men.  It  was  bestowed  upon  them  formally  and 
rightfully  by  the  Territorial  Legislature,  with  the  consent  of  the 
United  States,  expressed  by  the  Governor,  who  had  an  absolute  veto. 
There  is  no  kind  of  doubt  about  the  right  being  legally  vested.  This 
is  so  clear  and  unquestionable  that  the  Federal  judges  themselves, 
with  every  inclination  to  exclude  them  from  voting,  were  compelled 
to  decide  that  it  could  not  be  done.  Of  this  acknowledged  right  it  is 
now  proposed  to  deprive  them  by  a  bill  of  pains  and  penalties,  not 
grounded  upon  any  pretense  of  guilt,  but  coupled  with  an  admission 
that  the  suffering  parties  are  perfectly  innocent. 

It  will  hardly  be  pretended  that  the  rights  of  a  woman,  when  once 
legally  vested,  are  less  sacred  than  those  of  a  man,  or  that  he  more  than 
she  is  protected  by  the  Constitution  against  the  wrath  and  malice  of 
political  rulers.  If  the  male  voters  of  Utah  are  free  men,  the  females 
are  free  women.  One  is  no  more  subject  to  be  disfranchised  by  a  bill 
of  pains  and  penalties  than  the  other.  Can  either  of  them  be  so 
treated  ? 

The  right  of  suffrage  is  part  of  a  voter's  property.  Its  value  is 
inestimable,  because  it  is  the  right  preservative  of  all  other  rights. 
You  can  not  deprive  him  of  it  without  due  process  of  law.  You  can 
as  well  make  a  legislative  decree  to  take  the  lands  and  goods  of  these 
men  and  women  in  Utah  as  take  the  ballot  from  them.  The  ballot  is 
especially  valuable  to  them  at  this  moment,  as  their  only  weapon  of 
defense  against  the  enemies  who  are  prowling  around  them  to  capt 
ure  their  government  and  use  it  as  an  engine  to  plunder  and  oppress 
them.  The  security,  not  of  their  liberties  only,  but  of  their  peace, 


FORENSIC.  613 

property,  and  lives,  depend  upon  their  being  able  to  keep  it.  The  sin 
of  these  otherwise  innocent  and  virtuous  women  has  consisted  solely 
in  voting  to  sustain  honest  government  against  the  rapacity  and  fraud 
which  seek  to  overthrow  it. 

V.  The  end  and  object  of  this  whole  system  of  hostile  measures 
against  Utah  seems  to  be  the  destruction  of  the  popular  rule  in  that 
Territory.  I  may  be  wrong — for  I  can  only  reason  from  the  fact  that 
is  known  to  the  fact  that  is  not  known — but  I  do  not  think  that  the 
promoters  of  this  legislation  care  a  straw  how  much  or  how  little  the 
Mormons  are  married.  It  is  not  their  wives,  but  their  property  ;  not 
beauty,  but  booty — that  they  are  after.  I  have  not  much  faith  in  po 
litical  piety,  but  I  do  most  devoutly  believe  in  the  hunger  of  politi 
cal  adventurers  for  spoils  of  every  kind.  How  else  can  you  account 
for  the  struggle  they  are  now  making  to  get  possession  of  all  the  local 
offices  in  the  Territory,  including  the  treasurer,  auditor,  and  all  de 
positories  of  public  money  ?  If  they  do  not  want  to  rob  the  people, 
why  do  they  reach  out  their  hands  for  such  a  grab  as  this  ? 

If  you  will  look  at  what  is  called  the  Hoar  Amendment,  consider 
how  it  came  to  be  put  into  the  appropriation  bill  of  last  session,  and 
reflect  upon  the  nefarious  claim  which  the  Governor  and  his  adherents 
are  now  making  under  it  to  despoil  the  people  of  the  local  offices 
which  they  alone  have  the  right  to  fill,  you  will  be  forced  to  the  con 
clusion  that  the  public  liberty  of  no  people  has  ever  before  been  so 
shamelessly  assaulted.  I  do  not  say  that  the  claim  is  sustained  by  the 
law,  or  that  Congress  had  any  intention  to  authorize  the  robbery  ;  for 
1  am  satisfied  of  the  contrary  ;  but  the  animus  of  the  anti-popular 
faction  is  revealed  by  the  whole  transaction  in  a  light  that  utterly  dis 
credits  it. 

.  Legally  it  makes  no  difference  what  was  the  ultimate  purpose  of 
those  who  instigated  this  political  enterprise.  But  will  you,  as  friends 
of  the  Constitution — could  you,  even  if  you  were  its  enemies — say  that 
Congress  has  power  to  decree  the  removal  of  Territorial  officers,  and 
direct  their  places  to  be  filled  by  others  ?  Even  if  you  could  justify 
the  outrage  upon  the  people  of  removing  the  agents  to  whom  they 
have  entrusted  their  money  and  their  business,  and  forcing  upon  them 
others  in  whom  they  have  no  confidence,  what  right  have  you  to  de 
prive  individuals  of  their  property  without  due  process  of  law  ?  Their 
offices  are  property  in  which,  like  their  goods  and  lands,  they  have  a 
legally  vested  estate.  The  Hoar  Amendment  is  construed  (falsely,  I 
admit)  as  authorizing  all  these  offices  to  be  seized,  and  used  as  a 
means  of  forcing  the  people  to  maintain  their  enemies  and  pay  them 
salaries  for  any  acts  of  oppression  and  fraud  which  they  may  choose  to 
perpetrate. 

Do  not  charge  me  with  overstating  the  danger  to  which  the  Terri 
tory  will  be  exposed  if  its  government  shall  be  captured  by  those  who 


614:  FORENSIC. 

are  now  trying  to  take  it.  The  experience  of  the  whole  world  in  all 
time  shows  that  the  want  of  home  rule  is  the  want  of  everything  else 
that  is  honest  and  fair.  Kulers  forced  upon  a  people  are  never  just. 
It  is  as  certain  as  the  rising  of  the  sun  to-morrow  that  if  the  people 
are  put  under  foot  they  will  be  trampled  down  without  mercy.  And 
their  total  destruction  will  be  accomplished  very  soon.  They  can  not 
stand  what  South  Carolina  did  ;  there  is  no  "ten  years  of  good  steal 
ing"  there. 

VI.  No  reasonable  man  can  justify  or  even  excuse  such  enact 
ments  as  those  proposed  in  the  new  bill  now  pending  before  you, 
unless  it  be  assumed  that  the  people  of  Utah  have  no  rights  that  a 
white  man  is  bound  to  respect. 

It  appoints  a  commission  to  perform  the  functions  of  the  Legislat 
ure  and  to  redistrict  the  Territory.  The  apparent  purpose  of  this  is 
to  gerrymander  the  districts  so  as  to  give  the  minority  control  of  the 
legislative  body.  With  a  majority  of  nearly  twenty  to  one,  the  com 
mission  will  find  the  way  to  that  object  so  steep  and  crooked  that  they 
scarcely  can  hope  to  reach  it.  But  the  cunning  man  who  drew  this 
bill  inserted  a  provision  that  the  "existing  election  districts  and  ap 
portionments  of  representation  concerning  members  of  the  Legislative 
Assembly  are  hereby  abolished"  There  can  be  no  election  at  all  for 
members  of  the  Legislature  unless  new  districts  are  made  by  this  com 
mission.  By  simply  declining  to  act  it  can  extinguish  the  Territorial 
Legislature  altogether.  That  was  the  very  trick  by  which  the  election 
of  the  Territorial  officers  was  defeated  last  August.  The  Edmunds' 
bill  declared  that  all  registration  and  election  offices  should  be  vacant 
until  they  were  filled  by  appointments  of  certain  commissioners. 
Those  commissioners  would  not  make  any  appointments  until  after 
the  time  for  holding  the  election  had  passed,  and  so  there  was  no  elec 
tion.  To  expect  that  the  same  game  will  not  be  played  over  again 
requires  the  charity  that  believeth  all  things.  This  bill  would  put 
the  extinction  of  the  Territorial  Legislature  into  the  power  of  a  single 
member  of  the  commission,  for  the  redistricting  is  to  be  done,  not  by 
a  majority,  but  by  all,  and  a  dissent  of  one  would  make  the  action  of 
the  others  inoperative. 

It  would  be  wearisome  to  say  what  might  be  said  about  those  parts 
of  this  bill  which  authorize  a  person  to  be  kidnapped  and  held  as  a 
witness  who  has  not  been  subpoenaed  or  notified,  its  subjection  of  pri 
vate  papers  to  unreasonable  searches  and  seizures,  or  the  inhuman  dis 
regard  which  it  shows  of  family  feeling,  and  the  sanctities  of  private 
life,  by  compelling  men  and  women  lawfully  married  to  testify  against 
one  another. 

VII.  These  enactments,  made  and  proposed,  are  in  the  main  a 
comprehensive  bill  of  pains  and  penalties,  not  against  persons  guilty 
or  supposed  to  be  guilty  of  polygamy  or  any  other  hurtful  crime,  but 


FORENSIC.  615 

against  people  known  and  acknowledged  to  be  innocent.  They  are 
intended  to  disfranchise  whole  masses  of  free  persons,  reduce  them  to 
the  condition  of  slaves,  and  deprive  a  community  of  its  natural  and 
constitutional  right  to  an  honest  government  of  its  own.  For  such  a 
bill  there  is  not  only  no  warrant  in  the  Constitution,  but  it  is  expressly 
interdicted.  Nor  is  there  any  precedent  for  it  except  the  Keconstruc- 
tion  Laws  of  1867,  and  they  were  admitted  to  be  unconstitutional  by 
their  author,  and  by  the  counsel  who  undertook  to  defend  them^  and 
to  my  certain  knowledge  they  would  have  been  declared  void  by  the 
Supreme  Court  in  the  case  of  McArdle,  if  we  had  not  been  circum 
vented  by  an  act  of  Congress  taking  away  the  jurisdiction.  It  is  true 
that  they  were  made  effectual,  but  it  was  done  by  the  Fourteenth 
Amendment.  The  opponents  of  free  government  in  the  South,  know 
ing  that  Congress  had  no  such  power,  forcibly  injected  their  bill  of 
pains  and  penalties  into  the  Constitution  itself,  and  there  it  lies  now, 
side  by  side  with  the  provision  which  forbids  it.  But  the  injection 
served  only  for  that  occasion ;  it  did  not  abrogate  the  prohibition. 
Bills  of  pains  and  penalties  are  as  odious  as  ever.  It  is  the  duty  of 
every  public  man  and  every  private  citizen  to  hate  such  things  with 
all  his  mind  and  heart  and  strength,  as  I  hope  you  do. 

Coming  back  to  the  original  and  fundamental  proposition,  that  you 
have  no  authority  to  legislate  about  marriage  in  a  Territory,  you  will 
ask  what  then  are  we  to  do  with  polygamy  ?  It  is  a  bad  thing,  and  a 
false  religion  that  allows  it.  But  the  people  of  Utah  have  as  good  a 
right  to  their  false  religion  as  you  have  to  your  true  one.  Then  you 
add  that  it  is  not  a  religious  error  merely,  but  a  crime  which  ought  to 
be  extirpated  by  the  sword  of  the  civil  magistrate.  That  is  also  con 
ceded.  But  those  people  have  a  civil  government  of  their  own,  which 
is  as  wrong-headed  as  their  church.  Both  are  free  to  do  evil  on  this 
and  kindred  subjects  if  they  please,  and  they  are  neither  of  them  an 
swerable  to  you.  That  brings  you  to  the  end.  of  your  string.  You 
are  compelled  to  treat  this  offense  as  you  treat  others  in  the  States  and 
in  the  Territories — that  is,  leave  it  to  be  dealt  with  by  the  powers 
that  are  ordained  of  God  or  by  God  himself,  who  will  in  due  time 
become  the  minister  of  his  own  justice. 


616  FORENSIC. 

THE  SOUTH  CAROLINA  CASH 

BEFORE   THE  ELEOTOBAL   COMMISSION. 

Mr.  President  and  Gentlemen  : 

I  had  not,  and  have  not  now,  any  intention  to  argue  this  case.  I 
never  heard  the  objections  nor  knew  what  they  were  until  they  were 
read  in  your  presence  this  morning.  It  would  be  presumption  in  me 
to  attempt  an  argument  before  a  tribunal  like  this  on  such  a  case  as 
this,  having  had  no  previous  opportunity  to  consider  it,  which  might 
put  me  in  a  condition  better  than  the  judges  themselves.  You  have 
heard  as  much  of  this  case  and  know  as  much  about  it  as  I  do. 

My  idea  of  the  duty  which  a  counselor  owes  to  a  court  or  to  any 
other  tribunal,  judicial  or  quasi-judicial,  is  that  he  should  never  open 
his  mouth  except  for  the  purpose  of  assisting  the  judges  in  coming  to 
a  correct  conclusion  ;  and  if  he  is  not  in  a  situation  to  do  that  he 
ought  to  keep  silence. 

Besides  that,  I  am,  I  suppose,  the  very  last  man  in  this  whole  na 
tion  who  should  be  called  upon  to  speak  here  and  now.  Everybody 
has  suffered  more  or  less  by  events  and  proceedings  of  the  recent  past, 
some  by  wear  and  tear  of  conscience,  and  some  by  a  deep  sense  of  op 
pression  and  wrong.  But  perhaps  I,  more  than  most  others,  have  felt 
the  consciousness  that  I  have  lost  the  dignity  of  an  American  citizen. 
I,  in  common  with  the  rest,  am  degraded  and  humiliated.  This  nation 
has  got  her  great  big  foot  in  a  trap.  It  is  vain  to  struggle  for  her  ex 
trication. 

I  am  so  fallen  from  the  proud  estate  of  a  free  citizen,  you  have  so 
abjected  me,  that  I  am  fit  for  nothing  on  earth  but  to  represent  the 
poor,  defrauded,  broken-hearted  Democracy.  And  because  I  suffer 
more,  they  think  me  more  good  for  nothing  than  the  rest,  and  con 
clude  to  send  me  out  on  this  forlorn  hope,  judging,  no  doubt  truly, 
that  it  matters  not  what  becomes  of  me.  I  ought  to  go  gladly  if 
anything  which  I  can  do  or  say  might  have  the  effect  of  mitigating  the 
horrible  calamity  with  which  the  country  is  threatened  ;  a  President 
deriving  his  title  from  a  shameless  swindle,  not  merely  a  fraud,  but 
a  fraud  detected  and  exposed.  I  know  not  how  I  would  feel  if  called 
upon  to  suffer  death  for  my  country.  I  am  not  the  stuff  that  martyrs 
are  made  of,  but  if  my  life  could  redeem  this  nation  from  the  infamy 
with  which  she  is  clothed,  I  ought  to  go  to  the  grave  as  freely  as  I  ever 
went  to  my  bed.  I  see,  however,  no  practical  good  that  I  can  do,  and 
it  is  mere  weakness  to  complain. 

We  have  certain  objections  to  the  counting  of  this  Hayes  vote 
from  South  Carolina  which  look  to  me  insuperable,  but  I  can  not 
hope  that  they  will  wear  that  appearance  in  other  men's  eyes.  Per 
haps  the  feeling  which  I,  in  common  with  millions  of  others,  entertain 
on  this  subject  prevents  us  from  seeing  this  thing  in  its  true  light. 


FORENSIC.  617 

But  you  are  wise,  you  are  calm.  You  can  look  all  through  this  awful 
business  with  a  learned  spirit :  no  passionate  hatred  of  this  great  fraud 
can  cloud  your  mental  vision,  or  shake  the  even  balance  of  your  judg 
ment.  You  do  not  think  it  any  wrong  that  a  nation  should  be  cheated 
by  false  election  returns.  On  the  contrary,  it  is  rather  a  blessing  which 
heaven  has  sent  us  in  this  strange  disguise.  When  the  omnipotent 
lie  shall  be  throned  and  sceptered  and  crowned  you  think  we  ought  all 
of  us  to  fall  down  and  worship  it  as  the  hope  of  our  political  salvation. 
You  will  teach  us,  and  perhaps  we  will  learn  (perhaps  not),  that  under 
such  a  rule  we  are  better  off  than  if  truth  had  prevailed  and  justice 
been  triumphant. 

Give,  then,  your  cool  consideration  to  these  objections,  and  try 
them  by  'the  standard  of  the  law — I  mean  the  law  as  it  was  before  the 
organization  of  this  Commission.  I  admit  that  since  then  a  great 
revolution  has  taken  place  in  the  law.  It  is  not  now  what  it  used  to 
be.  All  our  notions  of  public  right  and  public  wrong  have  suffered  a 
complete  bouleversement. 

The  question  submitted  to  you  is  whether  the  persons  who  gave 
these  votes  were  "duly  appointed."  Duly,  of  course,  means  according 
to  law.  What  law  ?  The  Constitution  of  the  United  States,  the  acts 
of  Congress  passed  in  pursuance  thereof,  the  Constitution  of  South 
Carolina  and  the  authorized  acts  of  her  Legislature — these,  taken  alto 
gether,  constitute  the  law  of  the  case  before  you. 

By  these  laws  the  right,  duty,  and  power  of  appointing  electors  is 
given  to  the  people  of  South  Carolina — that  is  to  say,  the  citizens  of 
the  State  qualified  to  vote  at  general  elections.  Who  are  they  ?  By 
the  Constitution  of  the  State,  in  order  to  qualify  them  as  voters  they 
must  be  registered.  The  registry  of  a  native  citizen  is  a  sine  qua  non 
to  his  right  of  voting  as  much  as  the  naturalization  of  a  foreigner. 

Now,  the  Legislature  never  passed  any  law  for  the  registration  of 
voters,  and  no  registration  of  them  was  ever  made.  No  doubt  has 
been  or  can  be  entertained  that  the  object  and  purpose  of  this  omis 
sion  were  fraudulent  and  dishonest :  for  the  Legislature  as  well  as  the 
executive  department  of  that  government  has  been  in  the  hands  of 
the  most  redemptionless  rogues  on  the  face  of  the  earth.  But  what 
ever  may  have  been  the  motive,  nobody  can  doubt  that  the  legal  effect 
of  this  omission  is  to  make  the  election  illegal. 

That  is  hardly  the  worst  of  it.  The  election  itself,  emancipated 
from  all  law  and  all  authority,  was  no  better  than  a  riot,  a  mob,  a  gen 
eral  saturnalia,  in  which  the  soldiers  of  the  United  States  army  cut 
the  principal  as  well  as  the  decentest  figure.  We  offer  to  prove — the 
offer  will  go  upon  record,  and  there  it  will  stand  forever — that  every 
poll  in  Charleston  County,  where  they  rushed  into  the  ballot-box  7,000 
majority,  was  in  possession  of  the  soldiers. 

A  Government  whose  elections  are  controlled  by  military  force  can 


618  FORENSIC. 

not  be  republican  in  form  or  substance.  For  this  I  cite  the  author 
ity  of  Luther  vs.  Borden,  if  perchance  the  old-time  law  has  yet  any 
influence.  Do  you  not  see  the  hideous  depth  of  national  degrada 
tion  into  which  you  will  plunge  us  if  you  sanctify  this  mode  of  mak 
ing  a  President  ?  Brush  up  your  historical  memory,  and  think  of 
it  for  a  moment.  The  man  whom  you  elect  in  this  way  is  as  purely 
the  creature  of  the  military  power  as  Caligula  or  Domitian,  for 
whom  the  Praetorian  Guards  controlled  the  hustings  and  counted  the 
votes. 

But  then  we  can  not  get  behind  the  returns,  forsooth  !  Not 
we  ! 

You  will  not  let  us.  We  can  not  get  behind  them.  No.  That  is 
the  law,  of  course.  We  may  struggle  for  justice ;  we  may  cry  for 
mercy ;  we  may  go  down  on  our  knees  and  beg  and  woo  for  some  little 
recognition  of  our  rights  as  American  citizens  ;  but  we  might  as  well 
put  up  our  prayers  to  Jupiter  or  Mars  as  bring  suit  in  the  court  where 
Ehadamanthus  presides.  There  is  not  a  god  on  Olympus  that  would 
not  listen  to  us  with  more  favor  than  we  shall  be  heard  by  our  adver 
saries.  We  are  at  their  mercy ;  it  is  only  to  them  that  we  can  appeal, 
because  you  gentlemen  unfortunately  can  not  help  us.  You  are  bound 
by  the  new  law  which  you  have  made.  You  are,  of  course,  addicted, 
like  other  people,  to  the  vice  of  consistency,  and  what  is  done  once 
must  be  done  over  again. 

In  the  Louisiana  case  the  people  appointed  electors  in  favor  of  Til- 
den,  recorded  their  act,  finished  it,  and  left  their  work  in  such  a  state 
that  nobody  could  misunderstand  it.  But  other  persons,  who  had  no 
power  to  appoint,  falsified  the  record  of  the  actual  appointment,  partly 
by  plain  forgery  and  partly  by  fraud,  which  was  as  corrupt  in  morals 
and  as  void  in  law  as  any  forgery  could  be.  You  thought  it  right  and 
legal  and  just  to  say  that  you  would  not  look  at  the  record  which  the 
people  had  made  ;  the  forgery,  the  fraud,  and  the  corruption  were  too 
sacred  to  be  interfered  with  ;  the  truth  must  not  be  allowed  to  come 
in  conflict  with  the  imposture,  lest  the  concussion  might  be  damag 
ing. 

This  precedent  must  be  followed.  It  is  new  law,  to  be  sure,  but 
we  must  give  it  due  welcome  ;  and  the  new  lords  that  it  brings  into 
power  must  be  regarded  as  our  "very  noble  and  approved  good 
masters."  Having  decided  that  electors  were  duly  appointed  in  Lou 
isiana  who  were  known  not  to  be  appointed,  we  can  not  expect 
you  to  take  notice  of  any  fact  similar  or  kindred  to  it  in  South  Caro 
lina. 

Then,  again,  the  question  of  "  duly  appointed"  was  decided  in  the 
case  of  Levissee,  an  elector  who  was  an  officer  of  the  United  States 
Government  at  the  time  he  was  appointed,  and  continued  to  be  after 
ward.  The  Federal  Constitution  says  that  no  man  shall  be  appointed 


FORENSIC.  619 

who  is  in  that  relation  to  the  Federal  Government.  But  you  held, 
according  to  law,  mind  you,  that  he  was  a  lawful  elector,  and  his  vote 
a  good  vote.  In  other  words,  a  thing  is  perfectly  constitutional 
although  it  is  known  to  be  in  the  very  teeth  of  a  constitutional  inter 
dict. 

Xow  you  see  why  we  are  hopeless.  The  present  state  of  the  law 
is  sadly  against  us.  The  friends  of  honest  elections  and  honest  gov 
ernment  are  in  deep  despair.  We  once  thought  that  the  verifying 
power  of  the  two  Houses  of  Congress  ought  to  be  brought  always  into 
requisition  for  the  purpose  of  seeing  whether  the  thing  that  is  brought 
here  is  a  forgery  and  a  fraud  on  the  one  hand,  or  whether  it  is  a  genu 
ine  and  true  certificate  on  the  other. 

But,  while  we  can  not  ask  you  to  go  back  behind  this  certificate, 
will  you  just  please  to  go  to  it — only  to  it — not  a  step  behind  ?  If  you 
do  you  will  find  that  it  is  no  certificate  at  all  such  as  is  required  by 
law.  The  electors  must  vote  by  ballot,  and  they  are  required  to  be  on 
oath  before  they  vote.  That  certificate  does  not  show  that  either  of 
these  requirements  was  met,  and  where  a  party  is  exercising  a  special 
authority  like  this  they  must  keep  strictly  within  it,  and  you  are  not 
to  presume  anything  except  what  appears  on  the  face  of  their  act  to 
be  done. 

If  anybody  will  cast  back  his  mind  a  little  into  the  history  of  presi 
dential  elections,  or  look  at  the  debates  of  less  than  a  year  ago,  he  will 
remember  that  Mr.  Jefferson  was  charged,  when  he  was  Vice-Presi- 
dent  of  the  United  States,  with  having  elected  himself  by  means,  not 
of  a  fraudulent,  but  a  merely  informal  vote  sent  up  from  Georgia. 
The  informality  was  not  in  the  certificate  inside  of  the  envelope,  but 
outside  verification.  Mr.  Matthew  L.  Davis,  in  1837,  got  up  that 
story.  It  was  not  true,  but  it  was  believed  for  a  while,  and  it  cast 
great  odium  on  Mr.  Jefferson's  memory.  It  was  not  an  informality 
that  was  nearly  as  important  as  this,  nothing  like  it.  But  one  of  the 
Senators  now  on  this  bench  referred  to  it  in  a  debate  only  a  short  time 
ago,  and  denounced  Mr.  Jefferson  as  having  elected  himself  by  fraud 
because  he  did  not  call  the  attention  of  the  Senate  and  House  of  Rep 
resentatives  to  that  fact. 

If  Mr.  Jefferson's  memory  ought  to  be  sent  down  to  posterity  cov 
ered  with  infamy  because  he  in  his  own  case  allowed  a  vote  to  be 
counted  which  was  slightly  informal  on  the  outside  of  the  envelope, 
I  should  be  glad  to  know  what  ought  to  be  done  to  those  who 
would  count  this  vote,  which  has  neither  form  nor  substance, 
which  leaves  out  all  the  essential  particulars  that  they  are  required  to 
certify. 

This  great  nation  still  struggles  for  justice.  A  million  majority  of 
white  people  send  up  their  cry,  and  a  majority  of  more  than  a  quarter 
of  a  million  of  all  colors  demand  it.  But  we  can  not  complain.  I 


620  FORENSIC. 

want  you  to  understand  that  we  do  not  complain.  Usually  it  is  said 
that  "  the  fowler  setteth  not  forth  his  net  in  sight  of  the  bird"  ;  but 
this  fowler  set  the  net  in  sight  of  the  birds  that  went  into  it.  It  is 
largely  our  own  fault  that  we  were  caught. 

We  are  promised — and  I  hope  the  promise  will  be  kept — that  we 
shall  have  a  good  Government,  fraudulent  though  it  be  :  that  the 
rights  of  the  States  shall  be  respected,  and  individual  liberty  be  pro 
tected.  We  are  promised  the  same  reformation  which  the  Turkish 
Government  is  now  proposing  to  its  people.  The  Sultan  promises  that 
if  he  is  sustained  in  his  present  contest  he  will  establish  and  act  upon 
certain  principles. 

First,  the  work  of  decentralization  shall  commence  immediately, 
and  the  autonomy  of  the  provinces  shall  be  carefully  looked  after. 
Secondly,  the  people  shall  be  governed  by  their  natural  judges  ;  they 
will  not  send  Mohammedans  nor  Christian  renegades  from  Constanti 
nople  down  on  them,  but  they  shall  be  governed  by  people  of  their 
own  faith.  Thirdly,  no  subordinate  officer,  when  he  commits  an  ille 
gal  act,  shall  be  permitted  to  plead  in  justification  the  orders  of  his 
superior.  How  much  we  need  exactly  that  kind  of  reform  in  this 
country,  and  how  glad  we  ought  to  be  that  our  Government  is  going 
to  be  as  good  hereafter  as  the  Turk's  ! 

They  offer  us  everything  now.  They  denounce  negro  supremacy 
and  carpet-bag  thieves.  Their  pet  policy  is  for  the  South  to  be  aban 
doned.  They  offer  us  everything  but  one  ;  but  on  that  subject  their 
lips  are  closely  sealed.  They  refuse  to  say  that  they  will  not  cheat  us 
hereafter  in  the  elections.  If  they  would  only  agree  to  that ;  if  they 
would  only  repent  of  their  election  frauds,  and  make  restitution  of 
the  votes  they  have  stolen,  the  circle  of  our  felicities  would  be  full. 

If  this  thing  stands  accepted,  and  the  law  you  have  made  for  this 
occasion  shall  be  the  law  for  all  occasions,  we  can  never  expect  such  a 
thing  as  an  honest  election  again.  If  you  want  to  know  who  will  be 
President  by  a  future  election,  do  not  inquire  how  the  people  of  the 
States  are  going  to  vote.  You  need  only  to  know  what  kind  of  scoun 
drels  constitute  the  returning  boards,  and  how  much  it  will  take  to 
buy  them. 

But  I  think  that  even  that  will  end  some  day.  At  present  you 
have  us  down  and  under  your  feet.  Never  had  you  a  better  right  to 
rejoice.  Well  may  you  say  :  "  We  have  made  a  covenant  with  death, 
and  with  hell  are  we  at  agreement ;  when  the  overflowing  scourge  shall 
pass  through,  it  shall  not  come  unto  us ;  for  we  have  made  lies  our 
refuge,  and  under  falsehood  have  we  hid  ourselves."  But,  neverthe 
less,  wait  a  little  while.  The  waters  of  truth  will  rise  gradually,  and 
slowly  but  surely,  and  then  look  out  for  the  overflowing  scourge. 
"  The  refuge  of  lies  shall  be  swept  away,  and  the  hiding-place  of  false 
hood  shall  be  uncovered."  This  mighty  and  puissant  nation  will  yet 


FORENSIC.  621 

rouse  herself  up  like  a  strong  man  after  sleep,  and  shake  her  invincible 
locks  in  a  fashion  you  little  think  of  now.  "Wait :  retribution  will 
come  in  due  time.  Justice  travels  with  a  leaden  heel,  but  strikes  with 
an  iron  hand.  God's  mill  grinds  slow,  but  dreadfully  fine.  "Wait  till 
the  flood-gate  is  lifted,  and  a  full  head  of  water  comes  rushing  on. 
Wait  and  you  will  see  fine  grinding.then. 


THE   END. 


SPEECHES,    ARGUMENTS,    AND 
MISCELLANEOUS   PAPERS 

DAVID   DUDLEY  FIELD. 

Edited  by  A.  P.  SPRAGUE. 


Two  Volumes,  8vo Buckram,  $6.00. 


"Weighty  in  substance,  admirable  in  form,  that  is  the  judgment  which  will  be  pro 
nounced  oy  all  competent  and  candid  publicists  and  jurisconsults  on  the  collection  of 
'Speeches  and  Papers'  by  Mr.  David  Dudley  Field,  which  is  now  published  in  two  vol 
umes  by  the  Appletons.  Most  of  the  material  here  presented  in  a  permanent  and  compact 
embodiment  is  of  abiding  and  indisputable  import  to  the  student  of  American  constitutional 
law,  of  international  jurisprudence,  and  of  the  science  of  codification.  As  a  writer  on  inter 
national  law,  and  as  a  prime  mover  in  the  edifying  eifort  to  give  this  branch  of  jurispru 
dence  systematic  arrangement  and  adequate  authority,  Mr.  Field's  influence  is  felt  and 
gratefully  acknowledged  in  all  civilized  communities.  The  papers  and  addresses  which  set 
forth  his  views  and  suggestions  on  this  subject  will  be  found  printed  in  these  volumes. 
They  constitute  a  rich  repertory  to  which  the  reader  may  repair  for  knowledge  both  of  what 
international  law  now  is  and  of  what  it  ought  to  be.  We  repeat  that  Mr.  Field  has  laid  the 
student  of  history  and  law  under  deep  obligations.  Most  of  the  papers  here  collected  should 
have  been  published  in  book  form  long  ago,  and  the  least  important  of  them  deserved  pub 
lishing." — New  York  Sun. 

"  The  contents  of  these  two  volumes  relate  to  the  development  of  the  legal  branches  of 
political  science  in  this  country.  Constitutional  questions  touching  civil  rights  under  mili 
tary  conditions,  proposed  changes  in  the  judicial  system  and  in  forms  of  procedure,  the  his 
torical  details  of  the  effort  toward  a  compact  for  international  arbitration,  and  a  variety  of 
political  and  social  topics  are  reviewed  or  discussed  by  means  of  letters,  addresses  to  juries, 
essays,  speeches,  and  communications  to  the  journals  of  the  day.  And  this  load  of  glean 
ings  from  the  territory  Mr.  Field  has  helped  to  cultivate  is  an  acceptable,  a  valuable  contri 
bution  to  the  harvest  of  American  thought." — The  Literary  World,  Boston,  Mass. 

"  It  is  not  at  all  necessary  to  always  agree  with  Mr.  Field  in  these  speeches  and  argu 
ments  in  order  to  perceive  and  admire  the  superior  culture  of  his  mind  and  the  clearness  of 
his  reasonings.  There  is  absolutely  throughout  these  books  not  one  sign  of  the  common 
pettifogger  or  the  mere  trickery  of  small  attorney  ism,  but  from  beginning  to  end  a  sincere, 
clear,  professional  manliness  that  at  first  commends  itself,  and  afterward  becomes  fascinating 
to  the  intelligent  reader."— The  Philadelphia  Times. 

"  For  nearly  half  a  century  David  Dudley  Field  has  been  a  recognized  leader  of  the  bar 
of  this  State,  and  has  long  ranked  with  the  foremost  of  American  lawyers.  But  he  has  been 
more  than  a  leading  practitioner.  He  is  one  of  the  very  few  lawyers  who  have  rendered 
valuable  service  to  the  community,  as  well  as  to  the  legal  profession,  by  laboring  to  improve 
the  law  both  in  its  substance  and  its  procedure.  During  a  professional  life  spanning  more 
than  half  a  century  he  has  devoted  himself  with  rare  energy  and  ability  to  the  reform  of 
legal  abuses  and  crudities,  to  bringing  the  whole  body  of  the  law  into  a  system  of  more 
complete  harmony,  certainty,  and  simplicity,  and  to  the  advancement  of  the  principles  of 
right  and  justice  in  jurisprudence.  His  labors  have  been  in  the  domain  of  both  State  and 
international  law,  and  have  won  for  him  abroad  as  well  as  at  home  a  wide-spread  fame  as 
one  of  the  first  jurists  and  law  reformers  of  his  time.  Mr.  Field's  name  is  specially  identified 
with  codification.  He  was  a  zealous  advocate  of  the  reform  before  the  adoption  of  the  Con 
stitution  of  1846,  providing  for  the  codification  of  the  entire  body  of  the  law  in  this  State. 
As  one  of  the  commissioners  appointed  for  this  purpose  he  took  a  leading  part  in  drawing 
up  the  series  of  five  codes.  Mr.  Field  has  also  been  active  in  behalf  of  international  codifi 
cation.  The  writings  of  one  who  has  been  so  active  in  law  reform  must  have  a  permanent 
value  as  well  as  a  contemporaneous  interest.  It  is  safe  to  say  that  a  more  valuable  presenta 
tion  of  the  principles  and  progress  of  codification  and  law  reform  is  nowhere  to  be  found, 
while  the  discussion  of  important  topics  of  general  jurisprudence  and  legal  ethics  must  prove 
as  instructive  as  interesting  to  both  lay  and  professional  readers." — New  York  Herald. 


New  York:  D.  APPLETON  &  CO.,  Publishers,  1,  3,  &  5  Bond  Street. 


THE 


HISTORICAL  REFERENCE-BOOK, 

COMPRISING: 

A  Chronological  Table  of  Universal  History,  a  Chronological  Diction^- 
ary  of  Universal  History,  a  Biographical  Dictionary. 

WITH  GEOGBAPHICAL  NOTES. 

FOE  THE  USE  OF  STUDENTS,  TEACHERS,  AND  READERS. 
By  LOUIS   HEILPRIN. 


Crown  8vo,  579  pages.    Half  leather,  $3.00. 


"  One  of  the  most  complete,  compact,  and  valuable  works  of  reference  yet  produced." 
— Troy  Daily  Times. 

"  Unequaled  in  its  field." — Boston  Courier. 

"A  small  library  in  itself." — Chicago  Dial. 

"  An  invaluable  book  of  reference,  useful  alike  to  the  student  and  the  general  reader. 
The  arrangement  could  scarcely  be  better  or  more  convenient." — New  York  Herald. 

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"The  dates  are  brought  down  to  1884.  The  geographical  notes  which  accompany  the 
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elimination  of  minor  and  uninteresting  incidents  makes  it  much  easier  to  find  dates  and 
events  about  which  accuracy  is  necessary.  Sir  William  Hamilton  avers  that  too  retentive 
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Book  Slip-20m-9,'60(B3010s4)458 


220619 


Black,  J.S. 

Essays  &  speeches • 


Call  Number: 


B62 


a 


220619 


